U.S. GOVERNMENT PRINTING OFFICE

50–135 CC WASHINGTON : 1998

HEARING ON IMPLEMENTATION OF THE

ENDANGERED SPECIES ACT IN THE SOUTHWEST

HEARING

BEFORE THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

SECOND SESSION

JULY 15, 1998, WASHINGTON, DC

Serial No. 105–96

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 July 15, 1998 ..................................................................................... 1

Statement of Members:

Farr, Hon. Sam, a Representative in Congress from the State of California .............................................................................................................. 2

Hansen, Hon. James V., a Representative in Congress from the State

of Utah ........................................................................................................... 3

Miller, Hon. George, a Representative in Congress from the State of

California, prepared statement of ................................................................ 136

Pombo, Hon. Richard W., a Representative in Congress from the State

of California ................................................................................................... 1

Statement of Witnesses:

Anable, Michael, Deputy State Land Commissioner, Arizona Land Department, Phoenix, Arizona ......................................................................... 9

Prepared statement of ............................................................................... 147

Bason, Jimmy, New Mexico Cattlegrowers Association, Albuquerque, New

Mexico ............................................................................................................ 4

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

Coppelman, Peter, Deputy Assistant Attorney General for the Environment and Natural Resources Division, U.S. Department of Justice ........ 42

Prepared statement of ............................................................................... 165

Hutchinson, Howard, Coalition of Arizona/New Mexico Counties, Glenwood, New Mexico ......................................................................................... 6

Prepared statement of ............................................................................... 141

Lohoefener, Renne, Assistant Regional Director, Fish & Wildlife Service,

U.S. Department of Interior ......................................................................... 40

Prepared statement of ............................................................................... 69

Menges, Jeff, Second Vice President, Arizona Cattlemen’s Association,

Phoenix, Arizona ........................................................................................... 39

Prepared statement of ............................................................................... 64

Ohmart, Dr. Robert D., Center for Environmental Studies, Arizona State

University, Tempe, Arizona ......................................................................... 10

Prepared statement of ............................................................................... 62

Towns, Eleanor, Regional Forester for the Southwestern Region, U.S.

Forest Service and Dave Stewart, Acting Director of Range Management ............................................................................................................... 44

Prepared statement of ............................................................................... 71

Additional material submitted by ............................................................ 250

Wiygul, Robert, Earth Justice Legal Defense Fund, Denver, Colorado ....... 7

Prepared statement of ............................................................................... 60

Additional material supplied:

Fager, Leon, USFS-Retired, Rio Rancho, New Mexico, prepared statement

of ..................................................................................................................... 137

Communications submitted:

Chamber of Commerce, Sacramento, California, prepared statement of ..... 246

Chilton, James K. Jr., Chilton Ranch & Cattle Company, Arivaca, Arizona, prepared statement of ......................................................................... 221

Jennings, Brian and Deb, Lazy H Cross Ranch, C/O Irving Power Plant,

Camp Verde, Arizona, prepared statement of ............................................ 135

Johnson, Earl C., and Clifford K., Partners, Johnson Cattle Company,

Mesa, Arizona, prepared statement of ........................................................ 235

Knight, Phillip K., Date Creek Ranch, Wickenburg, Arizona, prepared

statement of ................................................................................................... 181

Murphy, Joan B., Phoenix, Arizona, prepared statement of ......................... 158
Page

IV

Communications submitted—Continued

Perkins, Tom, Perkins Ranch, Inc., Chino Valley, Arizona, prepared statement of ........................................................................................................... 241

Sanborn, Sandy and Marvalene, prepared statement of ............................... 132

Sutin, L. Anthony, Acting Assistant Attorney General, U.S. Dept. of

Justice, prepared statement of ..................................................................... 184
(1)

HEARING ON IMPLEMENTATION OF THE ENDANGERED SPECIES ACT IN THE SOUTHWEST

WEDNESDAY, JULY 15, 1998

HOUSE OF REPRESENTATIVES,

COMMITTEE ON RESOURCES,

Washington, DC.

The Committee met, pursuant to notice, at 2:07 p.m., in room

1324 Longworth House Office Building, Hon. Richard W. Pombo

[acting chairman of the Committee] presiding.

Mr. POMBO. [presiding] We’re going to call the hearing to order.

I ask unanimous consent to allow members that are not on the

full Committee—Mr. Skeen, Mr. Hayworth, and others had requested permission to participate in the hearing—I ask unanimous

consent that they be allowed to sit on the dais without objection.

I also ask unanimous consent that all members’ opening statements being included in the record. The record will remain open to

allow members who are not here at the beginning to enter their

opening statements in the record in the correct proportion.

STATEMENT OF HON. RICHARD W. POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. POMBO. The House Committee on Resources is holding this

hearing today on the implementation of the Endangered Species

Act in the southwestern United States. The avalanche of litigation

in the region has created a great deal of confusion and hardship.

I want to thank my colleagues from the States of New Mexico

and Arizona for bringing this situation to the attention of the Committee. In enacting the Endangered Species Act, Congress sought

to protect declining species from extinction. We believe that listing

species would stop the intentional harming of those species by overhunting or intentionally destroying necessary and critical habitat.

However, I believe that those who were serving in Congress when

the ESA was enacted never foresaw the use of the ESA by radicals

who use the ESA lawsuits to shut down entire communities and industries in the West.

The ESA lawsuit process has been described as a blunt instrument that allows a very small group of people to impose their will

on the majority whether they are right or wrong. The ESA lawsuit

gives extraordinary power to a very small number of people. Those

most personally affected by these lawsuits have been systematically deprived of their right to defend their livelihoods and property.
2

Prior to the recent Supreme Court decision in Bennett v. Spear,

only environmentalists could sue if they disagreed with a decision

of the Federal agency under the ESA. The Justice Department and

the Interior Department fought to keep private citizens out of the

courthouse. The only reason that the Supreme Court finally resolved the standing issue in Bennett v. Spear was that private citizens were willing to fight all the way to the Supreme Court. And

guess what? The Supreme Court agreed with Mr. Bennett and not

the Justice Department that all our citizens have the right to protect their civil and economic rights in court.

Now citizens who are personally affected by the extremists’ lawsuits want to participate in these lawsuits as intervenors. It seems

to me that allowing the most affected to intervene would ensure

that the court has all the necessary facts to make a better and

more accurate decision. The purpose of a trial is to get the truth.

Excluding private citizens in State and local governments from

ESA lawsuits deprives the court and the public of the truth. It results in one-sided lawsuits and may result in a severe injustice to

thousand of affected people and their families.

Settling these suits without the agreement of the intervenors deprives them of their right to a fair trial. It’s time to ensure that

the public has the opportunity for self-government through a full

and fair involvement in lawsuits, including the right to a fair trial.

Anything less is not democracy.

Mr. Farr, did you have an opening statement at this time?

STATEMENT OF HON. SAM FARR, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. FARR. Thank you, Mr. Chairman.

I would appreciate in this hearing discovering the real problems

that exist regarding the ESA consultation process required in every

change of ownership of land, or reuse of land, that is owned by the

Federal Government. With all the military-base closures in the

United States, we’ve had to go through that process repeatedly. I

represent the largest base that has been closed, about 28,000 acres,

and we went through the consultation process very effectively.

It has also been used in fisheries area such as the northeast

where they actually had to create some no-take zones because they

overfished certain areas and they needed to allow them to regenerate.

As members of this Committee and the Congress, we represent

people. But we also represent all the other living things on the

planet, particularly those living things in America. And we have a

responsibility to maintain a balance between people and nature.

My sense is that often times regulators don’t realize that there

has be a solution to a problem. There has to be an end, and I hope

that we and the regulators can keep that in focus. On the other

hand, those who are affected by regulations have to realize that the

end product usually is trying to enhance the environmental management of property, to make it better than it has been historically.

And I think that if we can find that consensus, we can, as Members

of Congress, make good law and support a good process.

I’m very supportive of the Endangered Species Act. I think it is

good law. I think in carrying it out, people sometimes err on the
3

side of caution, so we need to make sure that there’s a sense of

process here.

So, Mr. Chairman, I appreciate your having the hearing. I look

forward to the testimony.

Mr. POMBO. Thank you.

Are there any other opening statements at this time? Mr. Hansen.

STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF UTAH

Mr. HANSEN. Thank you, Mr. Chairman.

I hope people realize the significance of this Act which passed in

1973. If you go back and you read what was said in the House and

the Senate, it was a lot different as it was portrayed at that time

than it has turned out to be.

As you read about what was said, a lot of people said we’re going

to protect the grizzly bear, the bald eagle, things such as that, but

I think it was never envisioned to go to the extent that it has. Just

like the Wilderness Act, and Hubert Humphrey statement ‘‘they’ll

probably be no more than 30 million acres will ever go into wilderness.’’ We’re through 100 million and going up.

And so, this Act, in and of itself, does not have a cost-benefit

analysis to it. As you look at areas like Washington County in

Utah, they’ve been expending a lot of money for HCP’s for the

desert tortoise. We can’t come close to even coming up with the

money to pay the people off—who we agreed to pay off, who have

found the desert tortoise on their land. It has got to the point that

it’s almost ridiculous that we have police down there to make sure

that they cross the road. I don’t know what GS ratings these guys

get, but they are there to make sure that happens. But then we

find out from the best biologists around that the endangered species in Washington County is not really endangered, but it is endangered in California. And so, where it has respiratory diseases

in California, it’s very healthy in Utah, but we work on it. I have

never seen anything as more of a subsidy with no end in sight.

Somewhere there should be a cost-benefit analysis of what we get

out of this thing.

Take the squaw fish in the Colorado River. They’re trying to

now, both the State of Arizona and the State of Utah, now they

want us to come up $120 million to make fish ladders for the

squaw fish. Yet its cousin is in the Columbia River and in the Columbia River it is a predator. In the Colorado River, it’s an endangered species. I mean isn’t there some sense to this thing.

It’s much like the hearing that the chairman and I were at out

in Reno, Nevada on Monday where the wild-and-free running horse

is there. And instead of this beautiful thunderhead, and Flicka,

and all that wonderful stuff you see in movies, they’re dying of

starvation. Now the people who run cows out in that area, if they

go over one AUM, they’re kicked off the ground. If they don’t get

off the ground when they’re supposed to, there’s a penalty on them.

Yet they’re well over the amount of wild horses that run. And so,

they’re starving to death. So a few people who have the emotion

and not the science can feel that they’re doing the right thing. That

worries me a little bit.
4

If I’ve seen a subsidy, it’s the subsidy we’re doing on the Endangered Species Act, and the subsidy we’re doing on Wild Horse and

Burro Act. And not to get off on that, but I would hope that we

could attack this a piece at a time and bring this thing to some

presence of reality. I guess in 1973 if I had been here, I would have

probably voted for the Act.

But let me end on this: One of our Speakers that I knew very

well by the name of Thomas Foley, who is now the Ambassador to

Japan, made a statement to me because I was working with him

on another issue, he said ‘‘I wished to hell I had never voted for

the Endangered Species Act.’’

Thank you, Mr. Speaker.

Mr. POMBO. Thank you.

Any other opening statements?

I’d like to call up the first panel, Mr. Jimmy Bason, Mr. Howard

Hutchinson, Mr. Robert Wiygul, Mr. Michael Anable, and Dr. Robert Ohmart.

I’d like to thank you for joining us today. Just to familiarize

yourself, we limit the oral testimony to 5 minutes. You have a set

of lights that are in front of you. Works similar to traffic lights;

green means go; yellow means hurry up; and red means stop. Your

entire written testimony will be included in the record, but if you

could try to conclude your oral testimony in 5 minutes, the Committee would appreciate it.

Mr. Bason, if you’re prepared, you may begin.

STATEMENT OF JIMMY BASON, NEW MEXICO

CATTLEGROWERS ASSOCIATION, ALBUQUERQUE, NEW MEXICO

Mr. BASON. Mr. Chairman, members of the Committee, my name

is Jimmy R. Bason and I live seven miles out in the suburbs of the

little town of Hillsboro, New Mexico, which has a population of approximately 200 people. It is typical of the small, rural communities throughout the United States that you, the Federal Government, apparently are determined to eliminate.

I’m here representing the New Mexico Cattlegrowers and personally own a Federal Government grazing permit allotment on the

Gila National Forest next to my son’s adjoining permit which have

been in the family about 35 years.

The Federal Government through its agent, Region 3, Southwest

Region, and the news media, but not face-to-face has insinuated

that ranchers don’t want to change their ways and further insinuated that we’re just one step above dinosaurs. I fully realize some

of those representatives are in this same room.

This is to use an old, unchanged word from these hallowed halls,

complete ‘‘balderdash.’’ We are really on the cutting edge of change.

We’re constantly trying to improve ourselves and the resources that

we live on. There’s no reason for us to destroy that, but we’re not

on the cutting edge of unproven, and untested change that’s based

on theoretical changes designed to achieve some fanciful political

goal.

We stay current with the latest scientific methods through constant schools, lectures, quarterly meetings, and all the disciplines

at every one of our meetings—extension courses, short courses, et
5

cetera, et cetera. When the adversaries—and I use that word—determine they cannot win in actual facts, they completely change

the rules on us. I compare this to challenging Michael Jordan, and

I didn’t say Michael Jackson—Michael Jordan, not Michael Jackson—and the Chicago Bulls to a basketball game with a pickup

team, and just as the tip-off ball is about to be thrown in front, I

announce to Michael we’ve just changed the rules. And I’m going

to be changing them as the game goes along. This is exactly what’s

happening to us in New Mexico, and I suspect the rest of the Nation.

Every one in this room must understand that every Federal Government permittee and lessee sets down once a year, every year,

and in conjunction with, and under the direction of the Federal

Government, agrees to an annual operating plan which the Federal

Government signs off on. There’s no surprises under this.

We are here today to discuss the citizens’ suit provision of the

Endangered Species Act and, specifically, the two joined suits,

numbers 666 and 2562, which were scheduled in Federal court in

Tucson, Arizona in April 1998, in which I attended for the New

Mexico Cattlegrowers and the Gila Permittees Association. The adversaries have alleged again in the media that the ranchers were

given all the chances to sign off on the agreement that the Federal

Government and the two zealous environmental groups agreed to.

This slick distortion of facts is very similar to my alluding to the

Potomac out here as being similar to the Rio Grande. They’re both

rivers. There is a world of difference in knowing of a possible tentative agreement 5 days before court and actually having any input

into that agreement. Not much need to have prisoner sign off on

his own death sentence when his head is already on the chopping

block and his hands are tied behind his back.

Of course, we refused to join into the agreement. The judge himself saw the unjustness of this and refused to stipulate it in his

court. Once again, the Citizen Group had sued and just before the

actual science and facts could come up in court, the Federal Government rolled over and offered up their own operating plans; their

own best practices; and their own trusting permittees on the altar

of expediency.

I want to enter an article out of the Albuquerque Journal on the

third of August, 1997 into my testimony where it brags that lawyers fees are nothing because the Federal Government pays it. Mr.

Chairman, please recognize that we’re talking about individual

families and communities that are being ruined forever. They are

the direct result of the Federal Government’s policies that you and

your predecessors established right here in Washington, from the

time that we were encouraged to settle these sparsely occupied

lands to keep foreign governments at bay—such as France, Russia,

Spain, England, and so on—right through building of our infrastructure, the roads, the towns so that all 270 million citizens can

come enjoy what they see today.

The Federal Government as a landlord must recognize that these

aren’t weekly renters out here or motel overnighters. They are the

builders and the stayers of these rural areas. You can see their loyalty to the Federal Government in their improvements, and their

flags, and all of their infrastructure, and their service to the coun-
6

try. And in no place more graphically illustrated than the noisy

schools, or the new, and the silent cemeteries with generations of

names for those passed on.

In closing, I want to please remind you that you are the Federal

Government and please accept that responsibility that you worked

so hard to get elected to. I’m tired of people saying it was those

guys. On my ranch for 40 years, there’s been an individual named

‘‘not me.’’ I’ve never been able to find him, but he’s constantly referred to whenever I ask ‘‘who messed this up? Who tore this up?’’

The answer is always ‘‘not me.’’ I’ve never found him. I’m overjoyed

to finally be in here in front of ‘‘they’’ as in ‘‘they said,’’ ‘‘they told

us to do it.’’ You are ‘‘they.’’

Thank you, Mr. Chairman.

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

hearing.]

Mr. POMBO. They’re not here.

[Laughter.]

Mr. BASON. Yes, they are.

[Laughter.]

They serve on all the committees around here beside just this

one.

Mr. POMBO. Mr. Hutchinson.

STATEMENT OF HOWARD HUTCHINSON, COALITION OF

ARIZONA/NEW MEXICO COUNTIES, GLENWOOD, NEW MEXICO

Mr. HUTCHINSON. Thank you, Mr. Chairman, and members of

the Committee.

The legal strategies being employed by the environmental litigants have evolved over two decades. The examples being focused

on by this hearing, CV 97666 and CV 972562, are only two cases

in a succession of suits. The strategy focuses on land planning processes contained in the National Forest Management Act and the

Federal Lands Management Policy Act.

The assertion is that the land and resource management plans

are action-forcing, therefore, subject to Section 7 formal consultations under the Endangered Species Act. The Supreme Court addressed this issue on May 18 of this year. Their ruling was that

forest plans are programmatic and not action forcing.

The cases prior to 666/2562 were concluded with stipulated settlements. Attempts at intervention by other affected interests were

opposed by both the Justice Department and the plaintiffs. Settlements were granted by the Federal judges before the issue of intervention status was determined on appeal.

The results of these questionable settlements has been the slow

but steady elimination of management activities on the National

Forest and BLM lands. At the same time, when according to Dr.

Garrett’s report, cited in my written statement, these lands are in

desperate need of restoration.

The April 27, 1998 issue of High Country News reported on Chief

Mike Dombeck’s agenda, ‘‘Aide Cris Wood says the fate of the

schools would be better served separating their support from the

rate at which trees are falling.’’ By slowing decoupling communities

from the 25 percent fund, we would like to see them less subject

to the whims, and ups and downs of the Forest Service’s timber
7

management program. ‘‘Over the short term,’’ Wood says, ‘‘we’re

trying to provide a measure of stability and predictability they

haven’t had through much of this decade.’’

Are we now to have a decoupling of communities from their

ranching as well? The instability of the last decade referred to Mr.

Wood was the direct result of ESA citizens’ suit and stipulated settlements. The agenda of the executive branch seems to run parallel

with that of the environmental litigants.

The settlements have the appearance of friendly suit agreements.

The question begs to be asked, ‘‘is the administration’s Justice Department providing a suitable defense for the land management

agencies or facilitating implementation of a special interest’s goals

who share complementary or parallel agendas?’’

A great injustice is being inflicted on the rural residents of the

southwest region. After nearly a century of livestock numbers’ reductions, many on a voluntary basis, ecological conditions continue

to decline. It should have become obvious to someone long ago that

merely cutting numbers was not the solution.

In the current round of environmental assessments for implementing the agreement reached in 666/2562, the records of decision

issued following the disclosures will not lend to the Congressional

purpose in the NEPA of ‘‘encouraging productive and enjoyable

harmony between man and his environment.’’ The opposite will instead prevail.

The livelihoods of the rural populations in the southwest region

are being sacrificed on the altar of biocentricism with little assurance of created benefits for the environment or the biosphere.

Congress should insist that the land management agencies adhere to their missions, and governing statutes, and quit making

scapegoats of the commodity and amenity users for their mismanagement. Congress should also insist on the disclosure of impacts from settlements and insure that affected interests are assured standing in litigation. Further, Congress needs to investigate

the implementation of the convention on biodiversity without Senate ratification and the Wildlands Project.

Thank you, Mr. Chairman.

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

of hearing.]

Mr. POMBO. Thank you.

Mr. Wiygul.

STATEMENT OF ROBERT WIYGUL, EARTH JUSTICE LEGAL

DEFENSE FUND, DENVER, COLORADO

Mr. WIYGUL. Representatives, thank you very much for having

me here today.

My name is Robert Wiygul. I’m an attorney with the Earth Justice Legal Defense Fund in Denver. I’m very familiar with the lawsuit that is one of the subjects of this hearing. It’s called the Forest

Guardians’ lawsuit. I was the chief trial attorney in that lawsuit.

I was also the chief negotiator on the settlement agreement that’s

been spoken about in the lawsuit.

I’d like to give you my perspective on both that lawsuit and the

settlement agreement that ended it. I think you may find that a
8

significantly different perspective from what you’ve heard here

today.

First, let me say that that lawsuit primarily focused on what are

called riparian areas; streams and stream corridors in the southwestern United States. The reason it focused primarily on those

areas is because that 1 percent of the land base in the southwestern United States supports a huge assemblage of species that

live in that area. Some estimates are as much as 85 percent of the

species that live in the southwestern United States are dependent

upon those riparian areas, stream corridors, for their survival of

the species.

Now this particular lawsuit looked at those areas first and foremost. It focused on three species that use those areas and that depend on those areas for their survival. The southwestern willow

flycatcher, which is a bird species, and two fish, the spikedace and

the loach minnow. All of those creatures are dependent on healthy,

riparian forests and streams for their survival. They are all protected under the Endangered Species Act, and by law they must be

taken care of when Federal land management agencies are doing

their planning.

As we reviewed the situation in the desert southwest with respect to the Forest Service’s grazing law, a couple of things became

very clear. One is that in that region, the Forest Service had good

aspirations to protection of riparian areas in their regional guidance; in their forest plans; in many of their operating agreements.

They had standards in there which, if followed, it helped protect

those areas; help protect their value as habitat for endangered and

other species. It also became clear that in many cases those standards were not being met on the ground and that actions were not

being taken to make those standards be met on the ground. That

is the reason that this lawsuit was filed. It followed a significant

number of discussions with the Forest Service about that situation.

Now, when we went to Tucson, we prepared to try this case. We

went with the intention of trying that case. As is very often the situation, for those of you who are trial lawyers or have been, the

pendency of a hearing gives added currency to settlement discussions. That was the case there. Those discussions—let me be very

clear about that—were not a rollover. Those discussions and that

lawsuit were hard-fought, hard-nosed, and the Justice Department,

who I consider to be colleagues in the bar, are worthy adversaries.

They are not on the same side of the fence. They were not on the

same side of the fence in that lawsuit when that agreement was

negotiated. They were representing clients and they were fulfilling

their obligations in that area. Other actions may well have to be

taken to prevent further degradation of species’ habitat in those

areas.

Now, it is also a fact that the intervenors in that lawsuit chose

not to participate in the settlement discussions of that lawsuit.

That is not a fact that I can change. It was a choice that they

made. They also attempted to challenge the settlement agreement

itself in its implementation in court, and that attempt was turned

down by the judge in Tucson.

I’d be happy to answer any further questions about this. I see I

have a yellow light on, but that is the perspective that we have on
9

this lawsuit. It was an arms-length settlement agreement which

the intervenors did have the opportunity to participate in represented a settlement of claims that, obviously in our view, the

Forest Service would have lost had we gone through with the hearing.

Again, thank you very much for the opportunity to be here. I look

forward to answering your questions after the other panelists have

finished.

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

hearing.]

Mr. POMBO. Thank you.

Mr. Anable.

STATEMENT OF MICHAEL ANABLE, DEPUTY STATE LAND COMMISSIONER, ARIZONA LAND DEPARTMENT, PHOENIX, ARIZONA

Mr. ANABLE. Thank you, Mr. Chairman, members of the Committee.

My name is Michael Anable, the Deputy State Land Commissioner for the State of Arizona.

I’d like to give a little different perspective on third-party intervenor involvement in the citizens’ suit. It’s often where the Land

Department finds itself.

We’ve run across three different kinds of suits: suits where the

third-party or the citizen is trying to force a deadline at his critical

habitat; suits where they’re trying to force consultation; or suits

which allege harm. The department has tried to intervene in a

great number of those cases, just like the cattlegrowers from New

Mexico did in the case that was just discussed, and we found it to

be very difficult to intervene. And I believe your opening comments, Mr. Chairman, were along the lines of where I want to

come from which is we need to provide more ability for intervenors

to have a say at the table.

There’s a great number of cases, which I cited in my written testimony, where I illustrate our struggles trying to intervene and the

types of settlements that have happened before we can even get to

the table and how egregious that’s been. I think similar to the arguments you heard from Mr. Bason.

The points that I really want to make are the recommendations

for change in the future I think Congress and this Committee

should consider. I think you might want to consider giving third

parties a right of intervention stronger than they have now. Make

it clear that if you are a party with a significant interest in land,

such as the State Land Department, that you have a right to intervene and have your voice heard, and you have a right to participate, to the extent you can, in settlement.

I think that a very practical problem with the current system is

the sixty-day notice of intent to sue are only given to the agency

that’s being sued. Third parties must struggle to find out if there

has been a suit filed that could affect their land. And, you know,

an agency such as mine which is not large does have some attorneys that can go through the court records and try to keep up

abreast of those, but as you know in the Ninth Circuit, it’s just a

playground for lawsuits and it’s very difficult to keep track of that.
10

I think that it would be fairly simple for Congress to require Federal agencies to post a summary—to file a summary in the Federal

Register of sixty-day notices they receive. Every third party, such

as us, and cattlegrowers, and others would know where they can

go look to find suits that are challenging them.

I think that Congress should take a look at allowing certain

types of activities to go forward during the consultation period. Our

experience has been that almost every project is on hold during the

pendency of consultation. And there is a great many projects that

every one knows will have no affect, and yet they get stalled. And

I think that there needs to some ability for common sense to be put

forward.

I think Congress might want to consider putting thresholds on

the type of injunctive relief that can be given. There’s many instances where broad injunctive relief is sought in these thirdparty—in these citizen lawsuits—that affect habitat that is, at

most, marginally important to species. For example, in the Southwest Center versus the Forest Service lawsuit that we heard about,

a great amount of that habitat was not occupied habitat; not suitable habitat, but potentially suitable habitat, but they still had to

remove livestock from. And I think that the court needs to have the

ability to weigh the relative importance of that habitat to the species versus the harm—the impact that it has on the landowner or

the permittee in that case. Right now, there is only a presumption

that the court act to err on the side of the species, and there’s really no wane of that. I’m not arguing that we should allow activities

in suitable habitat, or habitat where the animal exists. I’m saying

that there needs to be some level of wane when its potential habitat. Stuff that may be useful if you change it.

And the last thing I would argue for is that we might want to

consider limiting the awards on attorney’s fees. I know that seems

laughable, but in essence in the Ninth Circuit in Arizona, I think

the current situation has led to a cottage industry for filing lawsuits. These lawsuits are starting to look like Xeroxed copies that

just have the species named in them, and they’re all the same.

There’s one after another, and I don’t think that’s what Congress

intended when they dreamed up the Endangered Species Act.

That’s all the comments I have. I thank you for the time.

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

hearing.]

Mr. POMBO. Thank you.

Mr. Ohmart.

STATEMENT OF DR. ROBERT D. OHMART, CENTER FOR ENVIRONMENTAL STUDIES, ARIZONA STATE UNIVERSITY,

TEMPE, ARIZONA

Dr. OHMART. Good afternoon, ladies and gentlemen of the House

Resources Committee. Thank you, Mr. Chairman, for inviting me

to testify today. I want to acknowledge my Representative Shadegg, who serves on this Committee. I also see Mr. Hayworth is

here.

Even though I’ve been employed by Arizona State University for

the past 28 years, my comments today are my own based on my
11

education and experiences. They in no way represent those of the

university.

I’ve been working in riparian habitats throughout the southwest

for the past 25 years. In 1993, the Governor of Arizona appointed

about 35 scientists throughout Arizona and from all of the state

agencies and private entities as well to examine and rank ecosystems in Arizona at a level of risk. EPA provided the funding and

we on the Technical Committee worked 2 years examining and

ranking the risk level for all ecosystems within our state.

We found that ecosystems at greatest risk in Arizona are wetlands, springs, and streams. Domestic livestock grazing being ubiquitous in the state of Arizona is one of the top three human

stressors to these ecosystems.

I would like to bring your attention to these photographs as

these are repeat photographs.

[Photographs.]

The one on the right with all the cattle in the San Pedro River

was taken June 1985 when this area was still in private ownership

and being grazed by domestic livestock. Notice the width of the

streams, the shallowness of the stream. Then in June 1995, 10

years later, but eight and a half years after domestic livestock were

excluded from the San Pedro River, you can see the dramatic response of the riparian system, the value of wildlife habitat on the

left eight and a half years after domestic livestock exclusion. I have

many more of these types of repeat photographs as well.

Many people ask me, why worry about riparian habitats? What

is their importance to society, to us in the southwest? If southwestern civilization is to sustain itself, it must have clean, reliable

sources of water. Our riparian systems are vital to our survival in

the southwest. Without them, we simply cannot survive. When

healthy, they help dissipate floods, clean our water supplies, and

provide the greatest water yield through time. Healthy riparian

areas also provide the highest water quality.

These systems are also vital to the lion’s share of wildlife in the

southwest. For example, 75 to 85 percent of the wildlife in the

southwest are obligate users to riparian systems. By this, I mean

they have to have them to be able to survive. Another 15 to 20 percent of the wildlife use these habitats at some time or another

throughout the annual cycle.

How much riparian habitat is there? To give you some idea, I’ll

use the data from Arizona since they are the most accurate as far

as I know for New Mexico and the southwest. There are 73 million

acres total acreage in the state of Arizona. There are 260,000 acres

of riparian habitat or floodplain habitat, about .4, four-tenths of 1

percent. They are minuscule, yet they are vital habitat to the

greatest percentage of wildlife that live or exist in Arizona. They

are vital to us as humans to survive in Arizona. So, though small

in acreage, they’re extremely important to our wildlife, and as a

consequence as they degrade, more and more species are going to

continue to go on the endangered species’ list. More and more pressures are going to be imposed by the citizens of the west and the

southwest.
12

The most important ecological component for wildlife in these riparian systems is the cottonwood willow habitat that you see in

this photograph on your left.

[Photograph.]

It is considered by the Nature Conservancy as the rarest, forest

type in North America. With the above background information in

front of us, I think we can now easily answer Chairman Young’s

question as to why has the U.S. Forest Service imposed new regulations on grazing on Federal lands in the area. U.S. Forest Service

has not imposed any new regulations on Federal grazing permittees. It is only obeying the laws passed by Congress and beginning

to better protect natural resources on public lands.

Mr. Chairman, we have in the past borrowed and destroyed

abundant riparian resources from future generations. Unless we

start making management changes today, there will not be any riparian resources for future generations except for saltcedar. Starlings, english sparrows will be our most abundant wildlife.

Thank you for allowing me to testify.

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

hearing.]

Mr. POMBO. Thank you.

Mr. Anable, you made the statement about potential habitat in

your oral testimony. Could you expand upon that somewhat for the

Committee what is meant by potential habitat?

Mr. ANABLE. Mr. Chairman, members of the Committee, I believe

in the general sense it’s habitat that, given some future change in

either management or growth of plant material, or some change, it

will become, or has the potential to become, habitat for the species

of concern. But it doesn’t currently have all the attributes that it

would need to provide that kind of habitat.

Mr. POMBO. Are you saying that land is regulated because of its

potential habitat for endangered species, not because there’s endangered species there?

Mr. ANABLE. Mr. Chairman, yes, definitely. That’s quite common.

There’s three general categories. There’s occupied habitat; suitable,

but unoccupied; and then potential habitat. And in many instances,

at least in my limited experience, the latter two categories are the

lion’s share of the type of land that we are placing restrictions on.

Mr. POMBO. You’re saying that the lion’s share of the land that

they are putting restrictions on is potential habitat?

Mr. ANABLE. In the cases that I’ve been involved with, and I’ll

give you an example; the mexican spotted owl in northern Arizona.

There was quite a bit of litigation involved with that. There was

about a little over 3,000 acres of state land that was identified as

suitable habitat—critical habitat until that got invalidated for the

owl, but it was at best marginal habitat. It was Ponderosa Pine

Forest which latter when the Fish Wildlife Service came out with

their biological opinion, pretty much made it clear that, you know,

had they done some science outside of the courtroom, they had

probably never would have designated that as critical habitat. It at

best was foraging habitat, you know, outside of for-nesting habitat.

I say that in kind of a general sense. We do have some amount of

suitable habitat for the owl, but by in-large it was potential unoccupied habitat, at best.
13

Mr. POMBO. In order for it to qualify for as potential habitat, it

historically would have been habitat at some point in the past? Did

they have to show that, at some point, that it had been habitat?

Mr. ANABLE. Mr. Chairman, I don’t know. I think that is the intent that it was historically habitat that has been altered and with

some change in management, it will come back. I don’t know if

there are examples where they purposely would want to manipulate habitat to recreate habitat that has been lost. You know, I

guess there may be instances where they could do that, but I think

there should be some historical reason to believe it used to be habitat.

Mr. POMBO. Mr. Bason, in your testimony, you said that in regards to this specific lawsuit that you found out about it a few days

before it was settled. Is that accurate?

Mr. BASON. Yes, sir. We have a different take on it than Mr.

Wiygul, and I’m going by our attorney, who is Karen Budd. She

was notified. I think the hearing was scheduled on Tuesday, and

she was notified about 6 days before there was a potential settlement agreement. She lives up in Wyoming. We live in New Mexico.

Our individual permittees don’t all live right next to a fax machine.

We’re scattered out. She tried to keep the cattlegrowers informed,

our organization twice and the way that she had explained to us

just on the phone, it was nothing that we could live with. So the

fact that we had any input into that agreement is certainly not—

that was a done deal when we were told sign off or that’s it. We

went to the same hearing that Mr. Wiygul went, and we spent 3

days just trying to get a temporary restraining order—not as he

presents it to you—to keep them from implementing that agreement until we had time to have input in it. And the court ruled

against us on that because it was not in front of the court. They

had already settled outside of the court.

They had a stipulated agreement, which he helped draw up

dated the 14th of April. I have a copy of it here. The judge refused

to stipulate or to sign it. So they did another one on the 16th of

April, which is a lot more restrictive to the permittees. And by

‘‘they,’’ I mean the Federal Government and the two environmental

groups.

And that’s our take on the thing. And also, our take from a couple of weeks before, talking to the Justice Department, which he

says are his colleagues, they told us they thought they could win

this suit. The Forest Service and the Justice Department thought

they could win this suit. That’s what they told us. We came prepared to help them do that and found out that we were out of the

deal.

Mr. POMBO. But before the 6-day time period, was there a request made to have you participate in a potential settlement?

Mr. BASON. Not that I know of. If they asked our attorney before

that time, she didn’t have any knowledge of any specifics, because

she called us at the time that she actually knew that there was a

settlement agreement being proposed.

I also might expand a little. The Forest Service was going to a

lot of these affected permittees a month or two before and telling

them that they might have to fence these riparian areas. So a lot

of this was being talked about without us as an organization or an
14

industry knowing about, although we were getting rumors from individual permittees.

If an individual permittee would sign off and agree to that, either

under coercion or what he thinks best or whatever, then he went

out of the potential harm of the suit. That’s what they did a lot of

in Arizona. And a lot of the people affected thought that’s the best

way to do, and individually they got out of it.

Mr. POMBO. My time has expired, but on the second round I

would like to get back to this. Mr. Farr.

Mr. FARR. Thank you, Mr. Chairman.

We are talking only about public lands here, are we not? Not private lands?

Mr. BASON. Are you addressing me, sir?

Mr. FARR. It wasn’t clear from your testimony. Is it just public

lands?

Mr. WIYGUL. That’s correct. This lawsuit just involved public

lands on Forest Service managed areas.

Mr. FARR. On the Forest Service managed areas, how much of

the riparian corridor is grazed and would be subject to these consultations? What percentage of the lands available for grazing are

actually being placed on restriction?

Mr. WIYGUL. The exact percentage I don’t know, but it is on the

order of the overall representation of riparian habitat in the land

base, which is something around 1 percent, or in some cases, less

than 1 percent.

Mr. FARR. So it is riparian habitat or the grazing riparian habitat?

Mr. WIYGUL. Well, the riparian habitat on these leases or on

these allotments——

Mr. FARR. Is 1 percent.

Mr. WIYGUL. [continuing] rather would be roughly in the same

proportion it is overall, that’s correct.

Mr. FARR. Well, I really appreciate your testimony, Mr. Bason.

It was very eloquent. But it is still difficult for me to understand

the issue. You have a lease on these lands that have the riparian

habitat on it, and because of the restrictions, you cannot graze in

that riparian habitat, and that is the problem?

Mr. BASON. That is addressed to me, sir?

Mr. FARR. Yes, sir.

Mr. BASON. Yes, sir. In New Mexico and Arizona, the water is

the key. The water is the key. You have to have water for your

livestock. So 1 percent—and I won’t challenge his figures, I don’t

know—but that small percent controls all of the allotment. So

that’s a favorite Forest Service tactic to tell you you can still graze,

but you just can’t graze where there is water, which controls the

whole thing.

Mr. FARR. No, I understand that where the water is, is where everything is.

Mr. BASON. Yes, sir. And I’d like to make the point that there

is only land there that homesteaders didn’t take years ago. It’s the

land left over. And that’s why the riparian areas are becoming so

critical, because most of the good riparian areas have already been

homesteaded by four generations before. They took the good stuff.
15

Mr. FARR. Well, this is the problem. You have public land and

there is a lot of pressure on it for competing interests, and the

question is how do you balance that out. And the consultation process is usually the way you balance it out.

I recognize there is a problem, because this is an area that government really hasn’t dealt with before. It’s relatively new, as Mr.

Hansen pointed out, new law. On the other hand, the question I

am asking is are there any State regulators involved in this, or is

this just Federal regulators, Federal land?

Mr. BASON. On the forest permits that we are talking about, this

is just Federal land through the Forest Service, although water

quality and things like that are controlled through State regulation.

Mr. FARR. What is it specifically that is regulated that you don’t

like? Do you agree that the riparian corridor needs to be protected?

Mr. BASON. I personally don’t have a riparian. That is the other

thing that is hard to say here, because these suits are so intermingled. We personally don’t have endangered riparian area, although I represented our members in that case in Tucson, went to

do that, but didn’t get to.

Mr. FARR. Well, I’m not so interested in the history of the case.

I’m interested in trying to figure out what is the process here that

is causing so much problem. Because if it’s a management issue,

that is, cattle needing water, you’re grazing on public lands, and

you’re going to have to be subject to public protocols on use of that

land just like you can put restrictions on your private land when

you want somebody to lease on that land.

Is there a way of working these things out so that there is a balance here? I think that’s what it’s all about. It’s a balance. You

know, in my area, I have some very limited cattle grazing. Most

of it is working out wetlands issues on private lands. And what my

landowners say is we recognize that these things need to be protected. We just want to talk with one regulator who will speak for

everybody, because our problem is that there are too many overlapping regulators and you can’t get a straight answer.

Mr. BASON. Now you just put your finger exactly on our problem

out there, too.

Mr. FARR. Well, is that the problem? I mean, you may not like

the answer because you may end up getting all the regulators to

agree that this is what is the best management practice, and that

may step on what you think. IIt’s not private property. This is public property that you are leasing.

Mr. BASON. Well, it affects our private property, too, because we

are intermingled all throughout it. If you take away the grazing

leases, then the private property becomes valuable only for subdivision, and our country is going to turn into a house trailer under

every tree. That’s what is happening.

I have one allotment that is 88 square miles. I get to run 150

cows year round. Everybody that knows the cattle business—like

Congressman Skeen is going to laugh at how stupid I am—got 40

acres of deeded land in there. But that’s what holds it by government policy for the commensurate property. Does that mean I quit,

too?
16

But what we say, if we have always cooperated with the Federal

Government through the Forest Service, we have always cooperated. All of a sudden, in the last 2 or 3 years, they’ve become our

adversaries. They are rolling over, and I still use that word, so that

they can say we have done a great thing for this Endangered Species Act, and we can’t cooperate with them when they don’t say—

they don’t want our input, they just say here is the way it is, take

it or leave it.

But what you said about the different regulators, it does become

a problem, because the Fish and Wildlife Service, Department of

Interior, is really running the Forest Service Department of Ag.

Mr. FARR. I think there is a solution here, but I am the last to

suggest that the solution is getting more people into the courtroom.

Mr. BASON. Yes, sir. Thank you.

Mr. POMBO. Mr. Skeen.

Mr. SKEEN. Thank you, Mr. Chairman. I apologize for having to

leave. We’re appropriating today, as you know, and trying to get

those bills out over there, so I had to go. I’m sorry I missed some

of the hearings.

I’d like to pose a question to Mr. Wiygul. I’m sorry I didn’t hear

his testimony. But the Southwest Center for Biodiversity and the

Forest Guardians say that it was their lawsuit and the subsequent

settlement agreement that forced the cattle off these allotments for

the first time in years.

Is that a correct statement?

Mr. WIYGUL. It is correct. The Forest Service had standards that

they were not applying on these allotments to protect riparian

areas, and as a result of that settlement of the lawsuit, those

standards were applied, and in many cases those cattle got out of

the riparian areas.

Mr. SKEEN. Were these standards prevalent when the original

questions were answered between the grazers and the Forest Service, or is this something new?

Mr. WIYGUL. If I understand your question correctly, Representative, some of these standards have been in place since 1984 in the

Regional Guidance for the Southwest Region of the Forest Service.

Mr. SKEEN. Why weren’t they complied with before the

recent——

Mr. WIYGUL. I believe that is a question that is going to have to

go to the subsequent panel.

Mr. SKEEN. Well, that’s a question I’d like to have answered. I

am not looking for—the Justice and the Forest Service representatives say they are going to do this anyway, so the agreement was

really not a big deal, not even a small deal, is that correct?

Mr. WIYGUL. Not to second guess my colleagues’ characterization

of the agreement, I think it was certainly an important step forward in protecting those riparian areas and in making sure that

those standards, guidelines, and regulations that were on the books

were actually enforced.

And in that sense, I think it was a very important step forward

in the protection of those areas.

Mr. SKEEN. Well, you’ve got two approaches inherent in the questions that I asked you. Which of the two statements are correct,

and you can’t have it both ways. When you were talking about
17

doing this adjustment on riparian rights, was there ever any talk

about alternative or diversification of water supply or water assets

in this thing, like drilling a well, like putting a pipeline in, or putting a trough in someplace?

Mr. WIYGUL. Yes, it’s my understanding that in many of these

cases, they are looking at developing water in places away from riparian areas.

Mr. SKEEN. Then what’s the big deal on riparian rights?

Mr. WIYGUL. I’m sorry, sir?

Mr. SKEEN. Then what’s the big deal on riparian rights?

Mr. WIYGUL. Well, the big deal there was that you had cattle degrading these areas.

Mr. SKEEN. Well, when they don’t have a water tub to drink out

of, they’ll go drink out of the river. If you pump it out of the——

Mr. WIYGUL. That is indisputably the nature of cattle.

Mr. SKEEN. Yes, it certainly is. And human beings and everybody

else. I just wonder why all of a sudden we’ve got riparian rights,

when for several decades or more, that was no big deal? And all

of a sudden, we’re going to espouse riparian rights and that means

take the cattle off.

Mr. WIYGUL. I would say that for a couple of decades it was a

big deal; it was just ignored.

Mr. SKEEN. Well, that’s very interesting. I will save the questions

for further down the line, Mr. Chairman.

Mr. POMBO. Mr. Faleomavaega.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. In going through

some of the testimony—and certainly I wanted to thank the members of the panel for their testimony before the Committee this

afternoon. I think taking as a followup on what the gentleman from

New Mexico was trying to get from you gentleman is the fact that

obviously just under provisions of the Endangered Species Act, just

out of the 9th Circuit alone, some 262 cases have been filed.

Is this a reflection because the law is bad, or is it because of

some policies considered here that we haven’t done on our part in

the Congress to establish the kind of law that we don’t end up in

court? Anybody that would like to answer.

Mr. WIYGUL. I’m sorry, go ahead, Howard.

Mr. HUTCHINSON. Mr. Chairman and Representative, I think

that the number of cases actually does stem from mismanagement,

and many of the land users there are in concurrence with the environmental proponents that this has been occurring. And there have

been suggestions of alternative methods for addressing these problems.

However, the quagmire that we are in right now does not allow

for anything but the court adjudicated settlements being the management prescribed. So we get this essentially one-size-fits-all solution that is then generically assigned to everywhere. We are not allowed to adapt our managements and go forward.

There are a number of ranchers and other land users who are

approaching riparian use and it is really a matter of timing and intensity, versus total removal, if you are going to keep livestock on

the range.

Mr. FALEOMAVAEGA. Mr. Wiygul.
18

Mr. WIYGUL. Well, I think Mr. Hutchinson and I did find something that we could agree on there. I think the number of Endangered Species Act actions you’ve seen in this region of the country

is a reflection of some specific factor, including, unfortunately, a

long history of not addressing Endangered Species Act issues or

complying with the Act itself.

Where I come from, they say you fish where the fish are. I think

in this case, the Southwest region, unfortunately was one of the

places in which the Endangered Species Act has not been honored,

or had been honored more in the breech than the observance.

Mr. FALEOMAVAEGA. You don’t consider the Federal agencies responsible for enforcement of the Act to the extent that they are

doing their job according to the provisions of the ESA? Here’s my

problem. You’ve got a spotted owl. How many spotted owls do we

have in the Northwest region, and how many acres does it take for

a spotted owl to survive?

Mr. WIYGUL. I’m sorry, you’re asking me that question? You don’t

have very many spotted owls left.

Mr. FALEOMAVAEGA. Well, maybe the Mexican spotted owl or the

pygmy owl. I think I just wanted to relate to what Mr. Bason is

trying to say here. The gentleman has got heads of cattle; he is

given the right to graze. But to protect the minnow, those little

fish—and I am not very familiar with the minnows that exist in

the rivers. Is this more important than that a gentleman like Mr.

Bason has been given a right to graze his cattle?

Mr. WIYGUL. Yes, I think there are two separate questions that

are raised there, Representative. First is that yes, in the judgment

of the people of the United States who strongly support and continue to support the Endangered Species Act, protection of species,

including minnows, protection of that whole complex of biological

diversity that is represented by endangered species, is critically important.

Now, nobody wants to put anybody out of business, knock anybody out of a living or anything like that. But where those things

run into irreversible conflict, yes, you do have to act to protect

those species that are part of the public trust, that belong to the

citizens of the United States.

My second point is that grazing on public lands is a privilege

which is subject to regulation by the landowner, which is the Federal Government, which acts on behalf of the people of the United

States, and regulation to protect other resources is appropriate in

that situation.

Mr. FALEOMAVAEGA. Well, I think the problem that we have

here, we have NEPA, we have FLPMA, we have EPA, we have

ESA, we have Clean Water Act, Clean Air Act, I think with all

good and sincere intentions. But now we end up with 232 lawsuits.

To me, that gives me a clear indication that something is wrong

here, either the agencies responsible for the enforcement of the

law, or maybe we here in the Congress have not done our part in

specifying or providing for the appropriate language so that the law

could be properly administered or enforced.

And I just wanted to share that concern with you gentlemen.

Hopefully, I suppose we are all looking for the balance. How can

we strike a balance between the minnows and Mr. Bason and his
19

grazing cattle and among others who sincerely are trying to make

a living providing for the consumption demands of the American

public?

I don’t know if we consume minnows, but I just wanted to see

what are we going to do in trying to strike a balance in this. I just

wanted to share that concern with you gentlemen.

Thank you, Mr. Chairman. My time is up.

Mr. POMBO. Mr. Hayworth.

Mr. HAYWORTH. Thank you, Mr. Chairman. I’d like to thank

members of the panel, especially my friends and fellow Arizonans

who are here today.

Mr. Bason, I am with you. I don’t like to hear about that fellow

named ‘‘Not Me.’’ Mr. Hutchinson, I appreciate your comments. I

think, based on my own personal observation, I think I would cease

characterizing some of these groups as ‘‘environmental.’’ I think,

sadly, what we have seen now is the rise of a form of legal action

that really comes under the heading, the new prohibitionists.

Contrary to the protestations we have just heard from Mr.

Wiygul, the perception of many ranchers in Arizona and really

throughout the Southwest is that people are bound and determined

to put them out of business. And, in fact, we have now the rise of

the new prohibitionists, made manifest here by some of the comments and the delving into ‘‘legal mechanics’’ about lawsuits and

the micromanagement of what transpires in court and legal tactics.

Mr. Wiygul, how many lawsuits have been filed by you personally or by the organizations you represent?

Mr. WIYGUL. Are you talking about——

Mr. HAYWORTH. I am asking how many lawsuits like these, dealing with endangered species and dealing with riparian areas. How

many lawsuits have you filed in this area, sir?

Mr. WIYGUL. In the desert Southwest?

Mr. HAYWORTH. Yes, sir.

Mr. WIYGUL. One.

Mr. HAYWORTH. OK. How many lawsuits in general dealing with

the ESA and cattle ranching have been filed?

Mr. WIYGUL. My estimate in the desert Southwest would be, I’m

sure, 50 to 100.

Mr. HAYWORTH. Who pays the legal bills of your organization?

Mr. WIYGUL. In the case of the Earth Justice Legal Defense

Fund, the folks that I represent, about roughly 80 percent of that

is paid by donations from individuals. I would say down to 12 percent from foundations, I think about 2 percent from court-awarded

attorneys’ fees, and the rest from miscellaneous sources.

Mr. HAYWORTH. Does the Federal Government pay any part of

that?

Mr. WIYGUL. To the extent that any attorneys’ fees or costs are

awarded under the Endangered Species Act, those come from the

Federal Treasury, yes.

Mr. HAYWORTH. I’ve heard a lot of people talk about balance in

this room, and I think that a lot of people would like to see some

balance.

Let me turn to Dr. Ohmart. Thank you for coming, sir. Let me

turn to your photographic evidence you offer here. Could you offer
20

a little more detail on these two pictures. Are they from the exact

same location years later, or are they downstream?

Dr. OHMART. The photograph taken on the right was taken by an

employee of Arizona Game and Fish Department on the San Pedro

River. The photograph taken on the left, the one with green trees

in it, was taken June 1995 by an employee of mine who I requested

to go out to take the photograph on the right to try to find that

same spot with a picture of domestic livestock, if possible. This is

eight and a half years after.

But our data on the Colorado River show a mean growth rate of

cottonwoods of ten vertical feet a year. If you assume the San

Pedro is colder, the growing season is shorter, so if we say, OK,

let’s assume six vertical feet a year, 8 years of exclusion, you’ve 48

feet.

Mr. HAYWORTH. But to your best knowledge, that was taken from

the exact same vantage point from the bridge?

Dr. OHMART. It’s the exact same vantage point. I have been there

myself two or three times.

Mr. HAYWORTH. I think a subsequent panel will show some interesting photographic evidence as well. Dr. Ohmart, compared to the

late 1800’s, early 1900’s, roughly a century ago, how many cattle

do you now believe are grazing in the Southwest, specifically Arizona and New Mexico?

Dr. OHMART. I don’t have the exact numbers. If one goes back to

the historical literature, they estimated in the 1890’s, that there

was as high as a million to 1.5 million head of domestic livestock

grazing in Arizona. Of course, in the drought of 1893, it was reported that 30 to 70 percent of those animals died. Today, I am

sure there is a lot less than that, but I don’t have the exact number.

Mr. HAYWORTH. According to the figures that I have, you had

about 1.5 million head in Arizona 100 years ago, about 2 million

head in New Mexico. So 3.5 million head of cattle. Now there is

about 15 percent of that, according to my math, about 415,000

total.

If that’s the case, why do we pin all the destruction on the cattle?

If the numbers are decreasing, why would we say there is such

subsequent destruction of riparian areas, if there are fewer head of

cattle?

Dr. OHMART. I think if one looks at the data sets that we looked

at going through the Governor’s technical committee, there are

many stressors to riparian habitats. The three to stressors in the

State of Arizona are—one of them is domestic livestock grazing, because it is ubiquitous. Another is water management activities,

dams, reservoirs, riprapping, this type of thing. A third one is

ground water pumping.

Now, domestic livestock, I think when their numbers were really

high in the late 1800’s, had a tremendous impact on riparian habitats. Their numbers died off because of drought. Then we had very

wet years there. In fact, in 1905, the Salton Sink became the

Salton Sea because of flooding in the Colorado River. We had very

wet years. We had good productivity. Cattle numbers came back,

maybe in fewer numbers than what they were prior to the heavy

grazing in the late 1800’s.
21

But one of the problems is that once you put cattle out there in

an allotment and you don’t have any kind of management plan or

any way to regulate or move those animals, they all go to the riparian areas. Their ancestral stock was old-world riparian livestock.

So the minute we brought them here to the West, they went to the

riparian areas.

And you’d have to be a fool out there in Arizona, as you and I

know very well, when it gets 110 to 115 degrees, if I’m out there

in an allotment, I’m going to be in the riparian area. That’s where

the food is, that’s where the water is, that’s where the shade is.

So they concentrate there throughout the growing season. The riparian areas never have an opportunity to store energy, grow, set

seed, and do their thing. So we have this basic problem of the animals staying concentrated there and not getting out unless someone takes and moves them out by horseback or whatever.

Mr. HAYWORTH. I see my time is up. I thank you, Mr. Chairman.

Mr. POMBO. Mr. Underwood.

Mr. UNDERWOOD. Thank you, Mr. Chairman.

Given the inordinate number of lawsuits that all this

contentiousness has generated, ultimately, I think, for most of us

here, the members of the Resources Committee, we are really trying to find lessons in terms of suggestions for legislation. And it is

very easy, in the course of these hearings, to, in a sense, almost

have stereotypic views of what’s going on.

You have people who are utilizing public lands and who are

sometimes characterized as exploiters of the public trust, people

who are not mindful of the value of the public lands for the public

in general. You have strong environmentalists, activism. I have

had some personal experience with that, which I think people come

in and are very active and file lawsuits and absolutely do not consult anybody in the local community. They may have one or two

people active in the local community and the community in general

may feel one way, but the activism goes on regardless.

And we also have the issue of how this is being dealt with by

the Federal agencies and perhaps there is some defect in the legislation itself. I think I would go back to my friend from American

Samoa’s comment in trying to figure out if there’s some kind of lesson that we can learn from this. Is it inevitable that we will continue to attempt to resolve these issues through the courts?

I know that we will not get anyone to acknowledge that the environmentalists have gone haywire and will file any kind of lawsuit

at the drop of the hat to foist their nefarious agenda at every turn.

I don’t think we’ll get them to acknowledge that, and we’re certainly not going to get the people who graze cattle to acknowledge

that they are somehow rapacious in their attitudes toward the public lands which, in fact, sustain their livelihood.

So, given that, are we left to blame mismanagers, mismanagement in the Federal agencies. Had they conducted their business

in some other way or had the law been more specific in the manner

in which they conduct their business, that much of this

contentiousness could be avoided? Could some of this be mitigated

or is there just something that—I guess the characterization I get

from the cattle grazers is that everything was moving along relatively well until the Federal agencies all of a sudden became very
22

difficult to deal with for some unknown reason. And then the unknown reason, I guess, is spurred to action by court action by environmentalist groups.

So what I would like to hear is, is there any element along this

process, is there anything that can be done for improving or revamping the legislation or the consultation process, or moving the

process a little bit downward in terms of local decisionmaking, so

that this kind of—well, maybe the intent of the Endangered Species Act is to keep attorneys like Mr. Wiygul employed forever, I

don’t know.

But is there some way that some suggestion can be made regarding a kind of a summative view of this? I would be happy to hear

from Mr. Bason and Mr. Hutchinson and Mr. Wiygul on this.

Mr. BASON. Well, I’ll respond at first. The Endangered Species

Act is fatally flawed. This is from the bar at Hillsboro. We are experts there at everything. If you want to know about Iran or whatever, we know everything in Hillsboro. It is fatally flawed because

only the human species has the gall to think that we can freeze

time. We all think in our lifespan we are going to freeze time. This

species, it is going to be there, it is going to get more.

The way I was taught in school, all species run their course and

new ones come on. If we are going to freeze time for every one of

these species we have out here, including putting the grizzly back

in New Mexico—we’re going to do that too—what about the new

species that are trying to come along that have adapted to 270 million people. I use as an example the peregrine falcon in New York

that is eating the pigeons and living a great life; it has adapted.

Under the way this law is set up, we are going to freeze time.

We are smart enough in this room to say we are going to freeze

everything where it is. And we can’t do it. The way I was raised

and the way I work, if you get stuck in the mud, you get out. If

the roof leaks, you fix it. You cannot freeze time. But we all want

to under this Endangered Species Act.

There is nobody loves animals and insects and birds more than

the people out on the land. We can tell you all about them and

have names for them. But until we actually go back and touch the

Endangered Species Act and make it more practical, you are going

to have this constant fight where you are expecting the individual

landowners—and you can talk about public lands all you want, but

the individual landowner out there is who’s keeping the waters up,

who’s keeping the salt and the minerals and everything out for all

these endangered species—you are going to force him out of business.

And what is going to happen? Somebody needs to take a long

look at this. You cannot freeze time. As we sit here right now, people are making babies in the United States. We have to acknowledge the facts. So I feel strongly that you have to go back to the

Endangered Species Act and make it into a practical, working law.

And that’s my——

Mr. UNDERWOOD. I’ll ask you your comments on Iran later.

Mr. BASON. OK.

[Laughter.]

Mr. UNDERWOOD. Mr. Hutchinson.
23

Mr. HUTCHINSON. Mr. Chairman and Representative Underwood,

I think there are some solutions, and I think the construction of

the Act just as it is right now provides many of those solutions. Unfortunately, people are not given the opportunity or access to those

resolutions.

Under section 7 of the Endangered Species Act, when an agency

does go to that formal consultation level, a permittee is given access to that description of an alternative for a prudent measure to

take care of that species. Now, that’s supposed to take place.

And as an applicant—and that’s the language in the Act—as an

applicant, he is supposed to be at the table during that section 7

consultation taking a look at the biological information about the

species, its habitat, and its needs; and then being able to say, well,

gee, we can take care of that, we can do this in our management

scheme, and coming up with alternatives.

However, that does not lend to a one-size-fits-all decision that

comes out of a Federal court. And the judge is not going to spend

the time to individually go through every single allotment alleged

to be out of compliance and do that type of consultation process.

And it certainly can’t be expected of the Federal courts that are already overburdened with that.

But what I am saying is the processes are out there. The Federal

agencies are not allowing those to take place, and certainly, the

litigation is an obstacle for implementation of those processes.

Mr. UNDERWOOD. If the chairman will allow.

Mr. POMBO. Go ahead.

Mr. WIYGUL. I’ll try to be as brief as I can, although, Representative, let me say initially that if I had counted on the Endangered

Species Act to keep employed, I’d be a lot skinnier than I am right

now.

I think that there are two really important points to get across

here. One is that I think the best way to prevent litigation under

the Endangered Species Act to prevent what have been called train

wrecks in some other context is to make sure that that Act is complied with on the front end of the Federal lands management process and not on the back end.

The reason we found ourselves in a lawsuit like the Forest

Guardians lawsuit that’s been talked about here was because we

had biological proof which was very sound and which I felt very

comfortable going into court with that continued grazing in those

species’ habitats and in riparian areas was going to push them toward the brink of extinction.

If that had been addressed earlier, I don’t think we would have

found ourselves in that situation.

Now, I was taught that the best way to be respectful to folks is

to tell them what you think is the truth. So I am going to air a

perhaps unpopular opinion in this room, which is that I think the

Endangered Species Act works well now and has flexibility built

into it right now. That has been my experience as an attorney and

as a litigator. There is a great deal of agency discretion in the administration that is built into it, and I do not believe that weakening any of the protections of the Act is called for, for any reason.

The best way to deal with the litigation under the Endangered Species Act is to enforce it up front.
24

Mr. UNDERWOOD. Thank you very much for those responses. If

I will, Mr. Chairman, my only experience with the Endangered

Species Act and its application has been an unhappy one. To some

extent, your comments regarding the fact that it should be enforced

up front, and going back to Mr. Hutchinson’s comments about the

consultative end of it, in our particular experience, we felt very

strongly that a course of action had been decided in advance and

then consultation then occurs. And that somehow or other, we were

always missing the timelines and that there was something procedurally that always seemed to be amiss. And it seemed like, you

know, some people were in the know; and the rest, who were directly affected, were not in the know.

And that may call for some legislative fix, but certainly it is not

meant—none of these comments that I personally make are to be

described as out of sync with the intent of the Endangered Species

Act, but certainly the way in which it has been applied and the

lack of consultation. It is abominable. In almost every instance that

I have had to deal with, with the application of this law, it seemed

like we were always out of sync with the processes and that a decision, in fact, had been made prior to consultation, and consultation

was simply a pro forma process to prove that they had obeyed it.

Thank you.

Mr. POMBO. Mrs. Chenoweth.

Mrs. CHENOWETH. Thank you, Mr. Chairman. I do have some

questions.

I wanted to ask Dr. Ohmart, the pictures that you show here are

very interesting. Once again for the record, are they taken from exactly the same place because the angles are different, I know that.

But are they taken from exactly the same place?

Dr. OHMART. Yes, ma’am. They are taken exactly from the same

place. I didn’t take either photo, but I have been there, I have

checked it out and they are definitely repeat photographs 10 years

apart, but only eight and a half years of exclusion.

Mrs. CHENOWETH. It appears, Doctor, that the photo that was

taken eight and a half years later was taken in the springtime

judging from——

Dr. OHMART. They were both taken in June, one in June 1985,

this one in June 1995.

Mrs. CHENOWETH. OK. The reason I question is that there are

power lines going through the photo eight and a half years later.

Dr. OHMART. Right. Two things have changed in the photograph

on the left. One is a new power line went in, two is over the past

20 years, the mean base flow of the San Pedro River has declined

because of ground water pumping. So it’s not the river it was 20

years ago as far as——

Mrs. CHENOWETH. Declined because of ground water——

Dr. OHMART. Ground water pumping.

Mrs. CHENOWETH. [continuing] for the metropolitan areas.

Dr. OHMART. For Ft. Huachuca and for Sierra Vista in southern

Arizona.

Mrs. CHENOWETH. I see. OK, Doctor, thank you.

Mr. Wiygul, I wanted to try to understand this whole thing a little bit better with the stipulated lawsuit, because part of the rea-
25

son for this hearing is the implementation of the Endangered Species Act.

Let me get this straight. In 1997, two lawsuits were filed by citizen groups because they said there was a failure on the part of

the Forest Service to employ proper consultation, that is, site-specific consultation. And then the lawsuits were joined, right?

Mr. WIYGUL. Yes, ma’am, the lawsuits were joined. There were

more claims than the consultation claim.

Mrs. CHENOWETH. Now, it was recognized by everyone—the

court, you, everyone—that the site-specific consultation would be

finished by July 1998, right?

Mr. WIYGUL. There are two points there. At the time those lawsuits were filed, actually, a broader consultation on the entire region had never been completed, completed after the suits were

filed.

Mrs. CHENOWETH. But it was——

Mr. WIYGUL. The Forest Service was—I’m sorry.

Mrs. CHENOWETH. The fact was made known to all of the litigants that site-specific consultations were going on at the time that

the suits were joined and that they would be completed by July

1998.

Mr. WIYGUL. At the time those suits were filed, no, I don’t believe that was available. That happened after the suits were filed

and after regional consultation.

Mrs. CHENOWETH. So there was a hearing in April 1998 requesting a preliminary injunction.

Mr. WIYGUL. Yes, ma’am.

Mrs. CHENOWETH. So, in April you requested the preliminary injunction enjoining grazing on the affected allotment, and that was

2 months before.

Mr. WIYGUL. In riparian areas, yes.

Mrs. CHENOWETH. OK, 2 months before.

Mr. WIYGUL. I think it’s important to remember, Representative

Chenoweth, that the goal of finishing site-specific consultations on

these allotments on the part of the Forest Service and the Fish and

Wildlife Service was explicitly phrased in hortatory and aspirational terms. And if they had not made that date, there was no reason they couldn’t continue consulting as long as they wanted.

Mrs. CHENOWETH. Of course, they didn’t have a chance to make

the date, did they, because you entered into a stipulated agreement

without the cattlemen and the judge would not agree, correct? Because the cattlemen were not part of the stipulated agreement. And

then you entered into a settlement agreement which doesn’t take

the court’s agreement.

So then the judge went on to say that the fact that the agreement actually—I mean, the judge actually said that the agreement

exceeded the requirements of the ESA, but he had to decide that

that didn’t violate the ESA.

Mr. WIYGUL. With due respect, ma’am, I’d have to say that the

judge did not say that it exceeded the requirements of the Endangered Species Act. He said even if it did, that’s not necessarily

against the law. And he said that in the context of rejecting a request to block the implementation of that settlement agreement.
26

The intervenors, the folks in the Cattle Growers Association, had

the opportunity to go ahead and ask for an injunction or appeal

that order, and they chose not to take that opportunity.

Mrs. CHENOWETH. And this was a hearing on the settlement and

the judge—we are both talking about the hearing on the settlement.

Mr. WIYGUL. Yes, ma’am.

Mrs. CHENOWETH. And the settlement agreement. And the judge

wrote, and I quote, the fact that the agreement may exceed the requirements of the ESA does not mean it violates the ESA, end

quote. That is correct, right?

Mr. WIYGUL. Right. He said it may exceed the requirements.

Mrs. CHENOWETH. OK. There was a question asked earlier about

attorneys’ fees. And isn’t it true that there has been 101 cases filed

under the ESA in the last 10 years, and that the attorneys’ fees

that have been awarded range all the way from $1,000 to

$3,500,000?

Mr. WIYGUL. I don’t know if the number—I assume there have

been at least that many cases, and the range of attorneys’ fees

sounds about correct. I think it’s important to put that number in

context. That $3.5 million is about what, say, three partners at

Skadden, Arps, Slate, Meagher and Flom made in the course of the

past year.

The amount that is awarded in attorneys’ fees under the Endangered Species Act is not anywhere close to what the private bar

gets for doing cases of similar complexity.

Mrs. CHENOWETH. Well, $3.5 million for one of the cases is pretty

good fees.

Mr. WIYGUL. It’s a lot for three folks in a private law firm to

make, too.

Mrs. CHENOWETH. Thank you very much.

Mr. WIYGUL. Thank you.

Mr. POMBO. Mr. Shadegg.

Mr. SHADEGG. Thank you, Mr. Chairman.

Mr. Wiygul, let me just go back, because I want to clarify this

and I am a little confused. My understanding is that in 1996 and

1997, the Forest Service did engage in consultation on the regionwide plan, that is, the overall plan. That’s correct, is it not?

Mr. WIYGUL. That is, I believe, correct, yes.

Mr. SHADEGG. And then the issue was that there had not been

consultation on each of the individual allotments, is that right?

Mr. WIYGUL. That was one of the issues in the lawsuit. At the

time the lawsuit was filed, the regional consultation had not been

completed. It was right about that same time, if I’m not mistaken.

Mr. SHADEGG. Well, on that point, both the Justice Department

and the Forest Service contradict you. Both of them in written testimony, written statements submitted to us, say that the regionwide consultation had been completed.

Mr. WIYGUL. As of what date?

Mr. SHADEGG. As of December 1997.

Mr. WIYGUL. Right. I think the suit was filed, maybe a week or

something before that.

Mr. SHADEGG. OK.
27

Mr. WIYGUL. I’m not sure that the discrepancy in dates here is

significant.

Mr. SHADEGG. OK. So you are saying for 1996 and 1997, the regionwide consultation had been going on, there had been an overall

discussion. Just before the end of that, you file your lawsuit, and

at that time allege that there had not been the site-specific consultation.

Mr. WIYGUL. Right. We didn’t know it was just before the end

of that process, which had been going on for something

approaching——

Mr. SHADEGG. Two years.

Mr. WIYGUL. I guess, 18 months, 2 years at that point. The other

point that I think is worth making is that the other claims in that

lawsuit were not only did consultation not take place, but that the

practices of continuing to graze in many of these riparian areas

were resulting in substantive, if you will, violations of the Endangered Species Act by pushing these species toward extinction.

Mr. SHADEGG. Yes, and that’s fair. Let me just go back for a

minute. This is technical, and I want to just stay on it for a minute

and then get onto some broader issues. But isn’t there a problem

with the Endangered Species Act in that the minute a species is

listed, there can not have been consultation unless you knew it

ahead of time, and yet there can be an injunction immediately. You

can stop the use of the land and there is no waiting period, no time

period during which, once a species is listed, you can continue to

use the land while you conduct the consultation. And isn’t that an

inherent problem raised by your lawsuit with the Act that ought

to be fixed?

Mr. WIYGUL. I don’t think that’s raised by this lawsuit, because

these species have been listed for some time now. I think the point

that an injunction would automatically be issued on that, I think

you’d still have to prove the things one would ordinarily have to

prove in that context to make that happen. So I think that, in my

view, there is enough discretion in the courts there to prevent any

kind of——

Mr. SHADEGG. You are not confident you’d get the injunction the

day the species was listed, that’s all you’re saying?

Mr. WIYGUL. I’m not very confident about that, Representative.

Mr. SHADEGG. OK. Let me turn to a broader scope of issues, and

let me begin by thanking all the members of the panel, and again,

as my colleague, Mr. Hayworth did, thanking particularly the Arizonans for coming. I appreciate your being here.

I want to ask particularly Mr. Wiygul and Dr. Ohmart if you

think that the proper goal should be to ban all grazing in the

southwestern United States because of the nature of the southwestern United States and the nature of grazing. My time is short,

if you could answer that fairly quickly.

Mr. WIYGUL. Sure. I will answer briefly and let Dr. Ohmart say

that. I don’t speak for any organization on this. To the extent that

livestock grazing can take place in a manner that’s compatible with

protection of other resources in the law, than it’s something that

could be considered as a use of public lands.

Mr. SHADEGG. So you are not generically against all grazing. If

it can be done in a way that protects species, that’s OK with you.
28

Mr. WIYGUL. I keep an open mind on things.

Mr. SHADEGG. Dr. Ohmart, where are you?

Dr. OHMART. I have always maintained that domestic livestock

grazing should occur on public lands as long as it is not creating

resource damage or, for example, in these particular streams, we’ve

got species of fish and species of birds that are in dire trouble. And

there, I think the only way we are going to help them is by total

exclusion.

Mr. SHADEGG. Mr. Hutchinson said that it was a question of timing and intensity, rather than total removal. Do you agree with

that?

Dr. OHMART. I have looked at this issue a number of times and

have data from the field on it. And we took a stream, Date Creek,

near Wickenburg, and we grazed it only in the non-growing season

for 20-some odd years, 24 or 25 years. I could have accomplished

exactly the same thing that we have accomplished there in 24 or

25 years in about 7 or 8 years. So you increase the healing period

by four to five times, depending upon how early you begin to graze

it in the fall and how late you graze it in the spring.

So, unfortunately, we should have started 20, 25 years ago to

start better management on riparian areas, but the Forest Service

was slow to enforce regulations, BLM has been slow to enforce regulations. You know, we have a number of neotropical migrant birds

that are in dire trouble.

Mr. SHADEGG. Unfortunately, I am going to run out of time. I do

want to say, Mr. Bason, that I agree with you. I think we have a

serious problem here, both in that the Act attempts to freeze time

or pretend that man can control the entire environment and restore

habitats or species that have long since disappeared. But even

worse than that, my constituents believe the Endangered Species

Act was designed to protect species which are in danger of becoming extinct on the Earth, gone.

And yet, the language of the Act actually says that it protects

them wherever they once appeared, no matter how briefly or for

what reason. And we have, I think, several species of fish that are

creating problems in southern Arizona where those species came

forward for a brief period of time into that area, we can identify

they were there for a brief period of time, but now we are going

to protect for them. And where those same species of fish, you will

go south of the border in Mexico and there are a plentitude. We

have the pygmy owl, a similar circumstance. And I am a little bit

worried about that.

I guess I have a lot more questions, but we have run out of time,

and hopefully will get a second round either with this panel or the

next.

Mr. POMBO. Mr. Duncan.

Mr. DUNCAN. Thank you, Mr. Chairman. I want to say first of

all that I apologize that I had other meetings that prevented me

from hearing the testimony of the witnesses. I apologize if I cover

something or ask about something that’s already been covered.

But I have a 1996 report that is 2 years old that says since 1973

only 27 species have been removed from the Endangered Species

lists and seven of those were delisted because they went extinct.

Nine of them, according to the Fish and Wildlife Service, were data
29

errors, which means they never should have been listed in the first

place. The FWS claims to have recovered the remaining 11 species,

but not one of them was saved by the ESA. And it goes on to explain that.

Is that true? Are we doing better now, or are we basically in the

same position as this report from 2 years ago?

Mr. HUTCHINSON. Mr. Chairman and Representative Duncan, I

have contended the same thing about the Mexican Spotted Owl,

that it has been listed in error. And you weren’t here maybe for

my oral testimony at the beginning, but the Supreme Court took

a look at the issue of land and resource management plans as

being action forcing or not. The Supreme Court said no, they are

not action forcing.

The reason I am getting to this is a lot of these suits have been

brought, and a lot of listings have been created, due to Forest plans

in and of themselves. The primary reason that the Mexican Spotted

Owl was listed was because the Forest plans said that the forest

would be harvested in a shelterwood manner.

Well, what was stated in the Forest plans and what was taking

place on the ground were two different things. In fact, the Forest

Service had taken this sensitive species, which had become sensitive because it had been portrayed in the press in the Northwest,

is the reason it became sensitive. Not biologically sensitive; it had

become politically sensitive.

So the Forest planning, in and of itself, became the issue. And

so we are back to this situation of whether or not species are getting listed because they are actually in danger or not. I sit on the

Mexican Spotted Owl Upper Gilo Working Group for the recovery

planning. It is a very difficult position for me because I look at the

biology of the owl, and I look at the situation and I say we are losing more habitat for the Mexican Spotted Owl due to catastrophic

wildfire. We have lost more nesting and roosting sites in the last

10 years to catastrophic wildfire than in the entire history of logging in the Southwest.

Mr. DUNCAN. Well, many people have said for a long time that

this Act has been driven far more by politics and emotion than it

has been by science or biology. But let me read another statement.

This is from The Washington Times quoting a report that they

wrote about in an editorial about 3 years ago.

It says ‘‘The government has no idea of the true cost of the Endangered Species program. Thought unmeasured, the costs of implementing the Act as currently written are in the multibillions.

Yet in over 20 years, not a single endangered species has legitimately been recovered and delisted as a result of the Endangered

Species Act.’’

Does anybody on this panel have an idea of how much we’ve

spent or how much the Endangered Species Act has cost us? Is this

a wild estimate that they have here that says it has cost us in the

multibillions? Is that true?

Mr. HUTCHINSON. I’d say it’s underestimated.

Mr. DUNCAN. Underestimated. I see that my time is about to expire. Let me just go to Mr. Bason. I read in your testimony, you

say, ‘‘the radical environmentalists have no regard for the families

or rural economies, which they will kill if their suits are successful
30

and their agenda has nothing to do with the protection of any endangered species or the environment.’’

What, Mr. Bason, do you feel is their agenda? What many people

around the country have started to notice is that the environmental

movement has gone so far to the left and it is being dominated by

very wealthy people who can insulate themselves from the harm

that they do, because it doesn’t really matter to them if they kill

jobs or drive prices up. Yet there are many poor and working people who are being harmed greatly by this movement now.

And what I am wondering about is what do you mean—or if you

say their agenda has nothing to do with the protection of any endangered species, what do you think their agenda is at this point?

Mr. BASON. I felt till lately that their agenda was to drive all

livestock off the land permanently in Arizona and New Mexico. But

I’ve changed my mind. They want at least one or two cows out

there, so they can blame every one of these things on it.

In our case of this lawsuit that we are talking about, if they completely exclude the livestock off of the 60-something allotments that

have finally trimmed down to 23 allotments, no one is addressing

the elk. If there wasn’t a cow out there, when you have 1500 elk

come by, they are going to pound on those little minnows just like

a cow does. It is completely out of line.

Any thinking person that’s got common sense and knows whether to pick up a screwdriver or pick up a hammer, knows that you

cannot do what they are trying to do here. You cannot do this. You

have to have some other agenda there.

So I always felt it was to get the livestock off of our land completely. But now I know they’ve got to have one or two cows out

there, because they’ve got to have somebody to blame all this on.

From global warming right on down, you’ve got to have a cow to

blame it on.

I’d like to yield to my colleague who is not here, Sam Donaldson,

who has ranches in New Mexico, and you know his political bent.

On Sixty Minutes, his own program, they asked him what would

you do if an endangered wolf got there with your sheep, and he told

them what he would do.

Why in the world does any person in here, any person think that

if you were at your house and it’s five o’clock at night and there’s

no one around and you lift up this little board and there’s a little

six-legged creature that says please don’t kill me because I’m the

last in the world. Let the government come control your land free,

which is what the Endangered Species does, and you have an axe

in your hand and you’re looking at your grandson over there, what

are you going to do?

You are going to do exactly what Sam Donaldson said he would

do. I know that; I have fought it. I have had the Forest Guardians

have a meeting of 4 days right in the middle of my allotment, so

they could walk out and make comments in June after a 5-day

drought, I mean a 5-year drought. I know. I am there on the battle

lines. I know what I’m talking about.

I don’t know what the final agenda is, but it has nothing to do

with those endangered species, because when I went to school,

there were 200 or 300 endangered species that go out every day in
31

the world, every day. Some of the new have to have room to come

in.

I wanted to come up here and file suit on those little frogs that

had six legs over here in Minnesota and claim that they are a new

endangered species and everybody has to get out of Minnesota. It’s

gone crazy. And that’s what I mean by the fact that you’ve got to

come to a balance in this.

Don’t ask me another question.

Mr. DUNCAN. Well, all I can say is these rich people who grew

up in the cities and who come out once every couple of months into

the woods and think of themselves as great outdoorsmen, look at

things totally different from people like you who have lived on the

land and on the farms all your lives. I appreciate what you have

done for this country over the years, you and people like you, because you built this nation.

And if we do away with private property and if we do away with

ranching and farming in this country, then we’re going to live to

regret it one day, I can tell you that.

Mr. BASON. I appreciate that comment and the time. I want to

tell everyone that I am so grateful that Jurassic Park is not true,

because if they can clone a dinosaur, this whole country is potentially habitat.

Mr. POMBO. Mr. Farr, do you have additional questions?

Mr. FARR. Just a quick one. Thank you, Mr. Chairman.

You know, I think this is all about value. You are interested in

bottom line for ranching. A week ago today, I was sitting on the

hillside, private land, in Big Sur and I was looking at a California

condor that had been reintroduced. It was pretty exciting. I had

never seen one before and I had grown up in that area.

When I walked off the hill I went down to a restaurant and in

the restaurant everybody was talking about the condors, seeing the

condors. And the owner of the restaurant came up and said thank

you for helping preserve the condors and improving my business.

So why do you want to protect habitat? You were talking about

the fact that the species may come back. Well, in Big Sur, the habitat has been protected—this is on the coast of California. There are

five reintroduced condors and hopefully they are going to make it.

And you know what? When they make it, business is going to increase. The hotels and the restaurants are going to have more people in them.

So I think that is creating value and I believe that there is balance here. Unfortunately what happens in a lot of these hearings

is we invite you to give us a message, and then we kill the messenger, rather than trying to get to the real issue.

Dr. Ohmart, I am really impressed with the way you approached

this. If you want to use Mr. Hayworth’s analogy about cattle, how

many cattle are there today versus historically? We could take historical Southern California and compare the cattle herds in Southern California today. The only difference is a place called Los Angeles. It developed around what limited water there was and there

was no room for cattle.

Is there a way to have both cattle grazing and protection of the

riparian areas? Can this balance be established and has it been es-
32

tablished anywhere in Arizona? Do cattlemen work with you and

the University in trying to establish these things?

Dr. OHMART. I must confess I don’t have very many permittees

that work with me. I work with about three permittees. Because

generally, my first advice to a permittee is let’s get the cows off the

riparian area, let’s get it rehealed, give it a jump start if we need

to with plantings of willows or whatever we need to do to get the

woody rooted element in there, and then we’ll bring the cattle back

slowly.

Mr. FARR. And that hasn’t been done yet?

Dr. OHMART. Well, I am working on one Forest Service allotment

on the Prescott National Forest and the permittee removed his

cows from three and a half miles of the Verde River near

Perkinsville. Immediately, the Forest Service came in and said

that’s great, we’re going to keep the cows off, and when our team

is ready, we’ll bring the cows back on. So I don’t know if we’ll ever

get cows back on there, but I think if I’d have had 5 to 7 years,

we could have started grazing that riparian area.

Mr. FARR. Professionally, do you believe that that’s possible, to

bring the riparian areas back and then allow for grazing, through

management, as Mr. Skeen talked about, where you provide some

offsite watering holes and things like that?

Dr. OHMART. I firmly believe that. And he had a grant from our

state land and water group for $75,000 for us to build off-stream

waters. He has the water right and everything. The Forest Service

never——

Mr. FARR. You mentioned the State. Let me ask a question here,

because Mr. Bason talked about the fact that——

Mr. SHADEGG. Mr. Farr, let him finish his sentence. He said, ‘‘the

Forest Service never,’’ and I would like to hear the end of the sentence.

Dr. OHMART. The Forest Service never finished the planning

process, so the gentleman lost that money and the opportunity to

develop upland waters for his upland habitats. As a consequence

of this, we are kind of stuck, if you would, between, I think, good

common sense and Forest Service policy.

Mr. FARR. Well, I appreciate your approach to it. I hope the Committee will call upon your good common sense way of looking at it.

Mr. Bason said that the private lands that have water on them

are being developed. And so what happens is that the public lands

that have riparian areas and water on them are pressured. And the

question is, is the State of Arizona doing proper land management

so that the private lands will be responsible for the riparian corridors and not just leave that responsibility up to the Federal Government in federally owned lands?

Dr. OHMART. Our State really does very little to control development in riparian areas on private lands, even our State trust land.

In 1991, EPA published that riparian habitats in the West were in

the poorest ecological shape they have ever been in in the history

of this country. I would say that State trust lands and riparian

habitats even exceed that degradation level. There has not been a

law passed to protect State trust lands in the State of Arizona

since we became a State.
33

Mr. FARR. Well, I’d be interested in asking the Cattlemen’s Association in the next panel if they’ve lobbied the legislature to try to

get that. Because here you are coming to the Congress and beating

up on Federal lands because we have the responsibility for maintaining riparian habitat, whereas other governments have that

same responsibility but are not carrying out that responsibility.

Dr. OHMART. Well, they don’t have that responsibility, sir, because we don’t have the laws, unfortunately, in our State trust

lands. There are no laws of conservation other than just graze

them and try to maximize the buck.

Mr. FARR. Well, California has them.

Mr. POMBO. Before I go to Mr. Shadegg, Mr. Anable, would you

like to respond to that?

Mr. ANABLE. Yes, thank you, Mr. Chairman. I have heard that

kind of statement made many times before, and I have always

asked, where is your data to show me how that is true. It really

defies logic.

I submitted a map with my written testimony that depicts the

State lands scattered throughout the State. The vast majority of

our livestock allotments are intermingled with State, private, and

Federal land, either BLM or used in conjunction with Forest Service.

So I never have understood just how the cows that are on these

intermingled ranches know how to beat up State land worse than

Federal land that is not fenced separately. Granted, I am not going

to say every piece of riparian area we have is in excellent condition.

We have our problem areas. But I think on an average, it defies

logic to say that State trust riparian areas are worse than the BLM

or worse than private.

I probably would hedge and say that there are probably better

Forest Service riparian areas than the other three put together,

just because of longer term concern and management.

Mr. POMBO. Thank you. As is the case with California in looking

at your map, the largest landowner in Arizona is the Federal Government. So it is fairly understandable why you come here.

Mr. Shadegg.

Mr. SHADEGG. Thank you, Mr. Chairman, and I will be brief. Not

only is the Federal Government the largest landowner in the State

of Arizona, government is the largest landowner in the State of Arizona. I believe it is 86 percent of all land in the State of Arizona

is owned by some level of government or another, Federal, State or

local. That leaves very little private land.

I will be brief, Mr. Chairman; I know you want to move on to

the next panel. I simply want to go back quickly to Mr. Bason’s

point. I am gravely concerned that if—well, let me state it differently. I believe we can, and I am pleased to hear that both Mr.

Wiygul and Dr. Ohmart believe we can properly manage lands to

allow the presence of cattle for grazing, doing it with some common

sense and not over-grazing, because if we, in fact, drive all grazing

off of these lands, I think Mr. Bason’s point is well taken. And that

is that someone will then search for some value to that land. The

logical value will be development and we are going to have, as Mr.

Bason put so eloquently, a mobile home under every tree. And I

think a mobile home under every tree is not a particularly attrac-
34

tive way to develop the rural areas of Arizona or the unpopulated

areas of Arizona.

So I think there is a challenge before us to try to work on this

law to try to improve it. If, in fact, those are both taken from the

same spot, they tell a very significant picture. I hope we can reach

a balance.

In that regard, one of my constituents is Joan Murphy, who lives

in my district. She is part of an old-time Arizona family. She is a

self-described environmentalist, rancher, and volunteer. She serves

on the National Affairs and Legislative Committee of the Garden

Clubs of America. And we asked her to prepare testimony. It is, I

think, rather compelling testimony talking about this very issue:

how do we strike a balance, how do we not ban all grazing and yet

properly graze so that the lands are properly managed. I think it

is good testimony, Mr. Chairman, and I would like to submit it for

the record if I could.

Mr. POMBO. Without objection.

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

Mr. SHADEGG. I guess I would like to conclude by simply saying

that I think she has performed a great service in that through the

Garden Clubs of America, she has brought to Arizona various

groups and taken them out and shown them three different conditions of land: land where no grazing is allowed, land which is being

improperly managed—overgrazed, in most instances—and then

land which is properly grazed.

And in doing so, demonstrated that you can make a very strong

case that land which is not grazed at all does not stay in as good

condition as land which is properly grazed. And it is obvious that

land which is overgrazed is damaged in the long run, and that’s

isn’t good.

So I think there is a challenge before us. I guess I would also

want to put into the record an editorial by the Arizona Republic in

which they caution, their words, ‘‘in-your-face environmentalists,’’

to be careful about what they ask for. If they push to eliminate all

cattle from public lands and succeed, condos might replace cows as

private ranch land is sold.

I agree with the Arizona Republic. I don’t want to see condos replacing cows, and Mr. Bason, I share your sympathies. I am glad

to see there is some consensus here, I think, on where we ought

to be going in terms of goals. There may be differences in tactics.

I do have to say I think the purpose—and I want to commend

the chairman for this Committee hearing—we have got to, I believe, create a better law than we currently have, because I counted

the number of lawsuits in Arizona, and I believe it is 23 or 24, the

vast majority of which filed either by Southwest Center for Biological Diversity, Forest Guardians, or Dr. Robin Silver.

And I think it is incumbent upon us as a Congress to create a

system where not all decisions are made by Federal judges. Mr.

Wiygul, I was a practicing attorney before I came here, and I know

that litigation is a lot of fun and a good way to make a living and

I wish you well in collecting attorneys’ fees when you do right

under the law.

But Chip Cartwright, who used to be the forest manager in that

region, and I had a number of conversations. And I came to under-
35

stand that his job was impossible because no matter which way he

went on any given decision, he was going to get sued. And what

we then do is turn the management of all these lands, whether it’s

a Forest Service decision or a BLM decision or whatever, over to

some Federal judge.

And I simply don’t think that Federal judges have all the knowledge in the world and I think we have to find a more efficient system than the litigation system for resolving these issues. Because

we create a structure where every time a Federal agency makes a

decision, they get sued for it, whether it was to allow grazing or

not allow grazing, allow trees to be cut or not allow trees to be cut.

If we wind up with a lawsuit over that, that is an incredibly costly and incredibly inefficient system, making a Federal judge decide

the issue, whereas I would rather see some people with the technical expertise that is present on this panel making those decisions.

Thank you very much, Mr. Chairman.

Mr. POMBO. Mr. Faleomavaega.

Mr. FALEOMAVAEGA. Mr. Chairman, I do have a couple more

questions, if it is all right. Thank you.

I have a listing here of some 237 cases that have been filed with

the Fish and Wildlife, again on the questions of environment and

ESA and others. I would like to ask Mr. Wiygul—and please don’t

think I am beating on you or the others—I just wanted to get some

information here.

I recall you had responded saying that you have filed somewhere

between 50 to 100 cases on behalf of your clients, especially on environmental issues with the courts. I just want to get a more specific number from you on this.

Mr. WIYGUL. Right. I think that the question from, I believe,

Representative Hayworth, was how many Endangered Species Act

suits had been filed in the Southwest Region, and my guess was,

I don’t know, 50 or 100. I personally have, over the course of 7 or

8 years, probably filed 30 or 40.

Mr. FALEOMAVAEGA. OK, so I just wanted to get out of that, Mr.

Wiygul, what percentage have been cases that you file against Federal agencies for their lack of implementation of the provisions of

the law?

Mr. WIYGUL. Probably 40 percent, 30 percent, 40 percent.

Mr. FALEOMAVAEGA. The reason for my raising this is that I get

a strong impression that, at least from the comments made earlier,

there is nothing wrong with the law. It is just a lack of enforcement of the law that we find ourselves in court. Am I correct on

this or am I getting the wrong impression from you gentlemen?

Mr. WIYGUL. I think in the case of the Endangered Species Act,

I believe, particularly in some regions of the country, the problem

is lack of application and enforcement of that statute of the front

end of the Federal land management planning for other Federal action processes.

I think it’s important to remember in the Southwest that the

vast majority of those cases that have been filed there have been

won by the plaintiffs, and the forum in which we play there is that

of the Federal courts. And the Federal courts are a forum in which
36

accountability is demanded of attorneys such as myself and people

who bring those suits.

I do not think that the judges that we appear in front of there

can fairly be characterized as radical environmentalists, yet they

have ruled in favor of the plaintiffs in most of those cases.

Mr. FALEOMAVAEGA. Well, I think in most instances judges just

don’t want cases to come into their courts anyway. It’s just a problem that they are being forced into a situation where they have to

be the arbiters and they have to make a decision when issues such

as this come before them.

But I just wanted to get an idea from you gentlemen, all of you,

is it really because of the problems that we have with the Federal

agencies and their enforcement process? Is it the lack of promulgation of proper regulations based on the statute, or is it just a problem of the law itself? This is what I am trying to get to the bottom

of.

Mr. WIYGUL. Right. I do not believe that there is a basic problem

with the law itself, with the exception of the fact that it needs to

be strengthened to make sure that we protect a lot more habitat.

Mr. FALEOMAVAEGA. Again, hearing from my colleagues, and I respect them in terms of how they feel about endangered species, we

just had a hearing last week in Reno, Nevada on how we came

about protecting wild horses and burros.

This wasn’t because the legislators or our leaders here in Washington wanted to protect wild horses and burros. It was because of

the requests of hundreds and thousands of children from all over

the country. Wild Horse Annie from Reno, Nevada, who is the lady

who initiated the whole concept, and the fact that if there was indiscriminate slaughtering of horses that ended up in meat houses

for pet food, the kind of thing that goes totally against the mentality of the American people, Hopalong Cassidy, Gene Autrey, and

Roy Rogers, bless his heart.

You know, we live these kinds of experiences, and I see the merit

that there should be some kind of protection given to these species

of animals and plants, and I think it is part of our heritage. So I

do see that there is merit to the legislation, but at the same time,

if we are not doing the extremes, just as the gentleman from Guam

stated earlier.

And I think there is where we are having to find ourselves on

how can we strike that balance for the endangered species, for the

needs of Mr. Bason and what they are advocating, and for our

friends who represent the environmental community.

That is all I wanted to share with you gentlemen. Thank you

again, Mr. Chairman.

Mr. POMBO. Mr. Wiygul, I just wanted to give you an opportunity

to correct the record. You said that in the vast majority of the

cases, you had won. I have a list of the cases in front of me. I believe there is a couple, two, three here, that were actually won.

Most of these were settlements similar to what happened in this

particular lawsuit.

My understanding of this is that you didn’t have a judge or a

jury find in your favor, you had a settlement and that is where we

end up with the so-called friendly lawsuits.
37

Mr. WIYGUL. I don’t have the list that you have in front of you

there, but I don’t doubt that a lot of those were through settlements. However, I think they were through settlements that gave

the plaintiffs what they wanted, which plainly, I think, is a victory.

Mr. POMBO. Which brings us back to the reason that we are holding a hearing like this where you get accused of friendly lawsuits

between an environmental group and a willing Federal Government that settles a case, and the cattlemen are sitting out on the

side and they are not part of the settlement.

Mr. WIYGUL. I think that my experience with litigating Endangered Species Act cases and other sorts of cases with the Department of Justice and the Federal agencies has been that the agencies are not willing parties, and that those settlements come about

because the agency makes a correct risk termination that they are

going to lose the lawsuit and that they need to cut their losses and

try to do the best they can and get out of that situation.

With respect to the allegation that cattlemen, the Cattlegrowers

Associations, were cut out of those discussions, I was specifically

told by the attorney for the Arizona Cattlegrowers Association that

he believed that settlement discussions or any sort of settlement

there would violate a number of Federal statutes and they were not

going to take part in those discussions.

I regret that they made that decision. Apparently, they did, and

they did not take part in those discussions.

Mr. POMBO. We are going to give the cattlemen an opportunity

to respond to that in writing, because I do believe that that is an

important point. There is obviously a difference of opinion in front

of the Committee today about whether or not they voluntarily decided to stay out or whether they were told they had to stay out.

I would like to ask you another question. In terms of filing this

number of lawsuits, I have got a list here of about 320 lawsuits

that have been filed by the organization that you represent. Over

the past several years, the vast majority of those are in the West.

Why do you think all of these lawsuits are filed in the West and

the Southwest?

Mr. WIYGUL. I think in response to an earlier question here, the

reason is a very simple, straightforward, and intuitive one. First,

the Southwest is an area which, because of its ecosystem and the

complexity of it, has a lot of endangered species. That’s one very

good reason that that is the case.

The other is that, unfortunately, in a lot of cases, the Endangered Species Act has not been complied with there.

Mr. POMBO. Do you feel that the Endangered Species Act is being

complied with much more in the Northeast?

Mr. WIYGUL. I think you have a couple of factors at work there.

I suspect that if you looked at the relative numbers, you would find

that you didn’t have as many assemblages, if you will, of endangered species in small areas that concentrate the effects of management actions as what you have in the Southwest.

Mr. POMBO. Do you think if you took the 300-some odd Fish and

Wildlife Service employees that are in charge of listings in California and put them in Michigan for a couple of years, that they

could find more endangered species?
38

Mr. WIYGUL. I don’t know the answer to that question, Mr.

Chairman.

Mr. POMBO. And at the same time, take your organization and

move you to Michigan, do you think there would be more lawsuits

filed up there?

Mr. WIYGUL. You know, I think I do know the answer to that

question. It would probably be no, because I have practiced in other

parts of the country where the Endangered Species Act was not

used as much, and the reason for that was there just weren’t as

many endangered species or Federal activities of the type that affected them.

Mr. POMBO. Final question to followup on what you just said. All

of these lawsuits, or the vast majority of these lawsuits are because

of habitat and habitat destruction. You know, the picture of the

habitat that’s up there, that’s what we always talk about as habitat destruction.

This photo we have of the land use pattern in Nevada would be

very similar in California, Arizona, and New Mexico. There is obviously a lot less habitat destruction in those States than there is in

the Northeastern States, the Mid-Atlantic States where they have

much heavier development. The farming is much more intensive

over the years in those states.

And yet, the habitat destruction that has occurred in those

States doesn’t seem to interest you or the Fish and Wildlife Service. It is the habitat destruction that occurs out West because of

cattle or other things that gain your attention.

Mr. WIYGUL. I’d have to respectfully disagree with you about

that, Mr. Chairman. I think there are an awful lot of folks up in

the Northeast and on the East Coast who are very concerned about

those issues.

Mr. POMBO. Oh, they’re very concerned about Arizona and California and other places. They are not quite as concerned about

what’s happening in their area, because we don’t have the lawsuits

being filed that demand that they list endangered species there the

way that you do out in Arizona.

I am going to dismiss this panel. I do not want to cut you off,

but unfortunately, we have 5 minutes left in the vote and we are

going to have to go vote. I am going to dismiss this panel. I will

tell you that there are going to be further questions that I have of

each of you that will be submitted to you in writing. I would request that you answer those in a timely fashion so that they can

be included in the Committee hearing record.

Unfortunately, we are out of time, though, and we have to go

vote. But I am going to dismiss this panel and the hearing will be

temporarily recessed.

[Recess.]

Mr. POMBO. We’re going to call the hearing back to order. I’d like

to call up our second panel.

As you’re taking your seats, I apologize to the second panel for

the delay. Sometimes we can’t control the floor votes, but thank

you for being here to testify today.

Mr. Menges, if you are ready, you can begin.
39

STATEMENT OF JEFF MENGES, SECOND VICE PRESIDENT,

ARIZONA CATTLEMEN’S ASSOCIATION, PHOENIX, ARIZONA

Mr. MENGES. Thank you, Mr. Chairman. My name is Jeff

Menges. I’m a fourth generation rancher from Southeast Arizona,

and currently serving as Second Vice President of the Arizona Cattle Growers and present this testimony on behalf of its more than

2,000 members.

I’d like to thank the Committee and the chairman for having this

hearing and inviting me to testify on behalf of the Arizona Cattle

Growers with regards to the suits that were addressed in Tucson

and also with regards to some of my own personal experiences on

BLM lands and the Endangered Species Act.

In the cases in Tucson, cattle growers were brought into the

process at the request of the Forest Service and then sold out by

the same agency. The Arizona Cattlemen’s Association had witnesses prepared to testify as to the benefits that can result from

grazing in riparian areas, that it is not necessary to exclude grazing to ensure the continued existence of the species in question,

and that excluding grazing could be potentially harmful to some of

the endangered species. Unfortunately, these witnesses were never

heard because the agreement that was reached between the government and the environmental groups quickly brought an end to

the hearing.

First, I want to point out that the ability to continue to utilize

Federal lands is crucial to the future of the ranching industry, particularly in Arizona where the Federal Government owns more

than 73 percent of the land. These lands are intermingled with

State and privately owned lands making nearly every ranching operation dependent to some degree on the ability to utilize the Federal lands for grazing.

This attack by the environmentalist groups on Federal lands

grazing is having the effect of destroying Arizona’s ranching industry which provides beef for approximately seven million people.

This overzealous use of the ESA suits is forcing hard working

ranch families into removing their cattle from the very allotments

they have spent their lives stewarding—allotments which are in

better condition today than at any time in history.

For most ranchers, it is a lifetime goal to pass the family ranch

to the next generation as their parents and grandparents have

done. Good stewardship of the lands is in the best interest of every

ranching family. Nevertheless, there are a number of interest

groups that make no secret of the fact that they intend to remove

all cattle from the Federal lands in the Southwest, and they are

utilizing the ESA to do just that.

A typical scenario of what happens is the groups find an area

where they want to stop a use. They find a species, petition to have

it listed, file suit against the agency, asserting that they haven’t

entered into consultation and that they are taking endangered species, then they request a preliminary injunction, asking to stop the

activity, usually grazing, then they settle out of court and, more

times than not, they’re awarded attorneys’ fees. Assuming this

trend continues, most ranchers will turn to their last option which

is to subdivide and sell their private land.
40

I was called as an expert witness to the U.S. District Court in

Tucson, Arizona where the Forest Guardians were seeking a preliminary injunction to stop the grazing on more than 100 forest allotments. The Forest Service had requested that the Arizona Cattle

Growers intervene in the process. The ACGA then intervened,

along with the New Mexico Cattle Growers’ Association, at a cost

to us of approximately $100,000 only to have the Forest Service

settle with the environmentalists, behind closed doors, resulting in

the removal of cattle from these riparian areas.

And I see my yellow light’s come on, so I’d like to get into my

own case on the BLM lands. As you can see, my pictures, like Dr.

Ohmart’s pictures, are before and after pictures, but the difference

is this area has been grazed—winter grazing. We started in March

1990. That picture was taken the day we put the cattle out of the

area. We completed fencing. We completed waters. We entered into

a written, cooperative agreement saying that we were going to

graze the area in the winter during the dormant season. We grazed

it each winter. That’s what it looked like last week—the bottom

picture and then, in 1995, I received an award for the efforts. The

BLM monitored it in 1995 and it was the only area in 29 miles that

was in proper functioning condition, including a number of areas

that had cattle totally excluded. And then as a result of one of

these ESA lawsuits filed by the Southwest Center for Biological Diversity, earlier this year I was sent a full force and effect decision

saying that I would have to permanently remove my livestock from

that area.

So, in conclusion, until recently I’ve always been a strong supporter of the BLM and its grazing program. It distresses me to be

in confrontations with BLM officials that I considered friends, but

I have an obligation to my family to stand for what is right and

protect my family’s future. I’ve always believed that by caring for

the land as my parents, grandparents and great grandparents did

I was preserving an opportunity for my own children to engage in

this lifestyle if they should so choose. But I am now convinced that

if this runaway train called the Endangered Species Act is not

stopped, my children will not have that opportunity.

Thank you.

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

hearing.]

Mr. POMBO. Thank you.

Mr. Lohoefener.

STATEMENT OF RENNE LOHOEFENER, ASSISTANT REGIONAL

DIRECTOR, FISH & WILDLIFE SERVICE, U.S. DEPARTMENT

OF INTERIOR

Mr. LOHOEFENER. Mr. Chairman, members of the Committee,

thank you for the opportunity to discuss the Endangered Species

Act, specifically issues related to conservation of natural resources

and grazing in the Southwestern United States.

The Fish and Wildlife Service has experienced an abundance in

the dangerous species related litigation in the last few years, especially in the Southwest. However, the Service strongly supports the

citizen suit provision of the Endangered Species Act. This provision

plays an important role in ensuring the States, counties, the indus-
41

try, environmental organizations, and private citizens have a say

in the protection of species and habitat, and provide the means for

these parties to ask the courts—the judge—whether agencies are

appropriately implementing the Endangered Species Act.

Natural resource conservation in the Southwest is extremely

challenging, not as a result of the citizen suit provision and Endangered Species Act, but because there are so many competing demands for the Southwest natural resources. The Southwest is a

biologically rich area with many diverse and fragile ecosystems,

large expanses of public lands, fast growing metropolitan centers,

and scarce water resources. This situation has been further complicated by past problems in communication among Federal agencies and with the public. In addition, the Service and other agencies in the Southwest have an extremely heavy and ever-increasing

workload.

The complex social, ecological, and economic patterns in the

Southwest are not going to change. However, a change that is already underway is how Federal agencies are communicating with

each other and with the public, and how we are working together

to ensure compliance with the Endangered Species Act. We are

working closely with other agencies to streamline the consultation

process and to make it as efficient and effective as possible. The

Service has made and will continue to make every effort to ensure

that our decisions are scientifically valid and our priorities are

driven by the needs of species.

The Endangered Species Act requires the Service to make listing

decisions based solely on the best scientific and commercial data

available. It cannot be and is not influenced by pending or threatening litigation.

In the Southwest, the Service and other Federal agencies have

made a commitment to collaborate among agencies, with the public,

and with tribal, State and local governments. This effort is known

as the Southwest Strategy. By improving communications with all

interested parties, including open dialogue early in the decisionmaking process, we hope to decrease the amount of litigation and

use the resources that are currently applied to litigation to increasingly work with our partners to conserve natural resources in the

Southwest.

For example, to bring all agencies into compliance with the Endangered Species Act section 7 consultation requirements, a Southwest Strategy work group has just completed the streamlining

process to address the near-term section 7 workload. In addition,

public involvement is being undertaken and agencies involved in

the Southwest Strategy have recently been in contact with and

sought feedback from various State and tribal governments and

non-government parties.

Recently, the collaborative process developed through the Southwest Strategy helped avoid an injunction on cattle grazing on 160

Forest Service allotments in Arizona and New Mexico. The Forest

Service and the Fish and Wildlife Service had committed to find

new ways of doing business in the Southwest and a grazing work

group was under formation as part of the Southwest Strategy enabling us to come together quickly to consult on allotments identified in litigation by environmental organizations.
42

This interagency group was not only able to expedite consultation

on the 160 allotments that were the subject of the lawsuit, but they

also reviewed and consult on a total of nearly 750 allotments. During the review of these allotments, the Forest Service’s commitment to protecting species and ecosystems was evident as very few

modifications were needed to ensure that listed species were not

adversely affected by cattle grazing.

In order to ensure that the Service is able to help conserve natural resources while remaining responsive to the needs of other

Federal agencies and the public, the administration has requested

a $2 million increase in the Fiscal Year 1999 budget for the Southwest region. This increase in funding will allow us to increasingly

work with partners to reduce the need to list species, increasingly

work to recover species so that they may be removed from the list

of protected species, continue to address the listing backlog and respond to the hundreds of consultations requested by our Federal

agencies—other Federal agencies.

The Service and numerous other Federal agencies have put a

great deal of effort in getting the Southwest Strategy underway

and are hoping to use it as an example of how we can do business

in a more efficient and effective manner. We want to ensure that

those individuals that make a living off the land can continue to

do so while also ensuring that native species and their habitat are

protected on Federal lands, that our natural heritage is conserved,

and that future listings are avoided.

I am happy to report that we are currently headed in this direction. I hope I can report back to you in the near future that our

efforts have been successful and litigation in the Southwest has

been reduced.

Mr. Chairman, members of the Committee, thank you again for

the opportunity to testify on this issue. I’d be happy later, of

course, to answer any questions you may have.

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

of the hearing.]

Mr. POMBO. Thank you.

Mr. Coppelman.

STATEMENT OF PETER COPPELMAN, DEPUTY ASSISTANT ATTORNEY GENERAL FOR THE ENVIRONMENT AND NATURAL

RESOURCES DIVISION, U.S. DEPARTMENT OF JUSTICE

Mr. COPPELMAN. Mr. Chairman and members of the Committee,

I’m pleased to testify today regarding citizen suits brought by environmental plaintiffs under the Endangered Species Act and other

natural resource statutes in the Southwestern United States. The

Committee has asked that I focus on two particular cases: Southwest Center for Biological Diversity and the Forest Guardians’ case

and, particularly, on the stipulations that were entered in settlement of plaintiff’s motion for preliminary injunction, and I’m happy

to do so.

Decisions of Federal agencies in this case have avoided the kind

of broad injunctions that have been entered in a number of cases

around the country. Unlike those situations, there is no regionwide shutdown imposed by a Federal court in this case. Grazing in
43

the Southwest has continued despite all the litigation that we’ve

heard about.

In my written testimony, I described three situations where litigation was pursued rather than settlement and we found the

courts to be quite unsympathetic in the face of agency noncompliance with various environmental requirements including the Endangered Species Act. Those are first, in Texas—on the Texas National Forests litigation involving the Red-Cockaded Woodpecker

that began in 1985 has resulted in injunctions that were entered

in 1988 and, despite two trips to the Court of Appeals, remain in

effect today.

In the Pacific Northwest, as the Committee is aware, injunctions

entered by Federal courts in 1989 to 1992 shut down all timber

harvesting on 24 million acres of old growth forest until the agencies produced the President’s forest plan in 1994. And closer to

home, in the Southwest, Federal courts enjoined all timber harvesting in the region for over 16 months until December 1996 finding violation of consultation requirements of the Endangered Species Act with regard to the Mexican Spotted Owl.

Let me now turn to the Southwest Center litigation. In the

Southwest there are over a thousand grazing allotments in 12 national forests of which upwards of 700 contain species that are listed under the Endangered Species Act. The Act requires the Forest

Service to consult with the Fish and Wildlife Service on activities

that the Forest Service authorizes or permits, like grazing, that

may affect listed species. So, in 1996 and 1997, the Forest Service

consulted with the Fish and Wildlife Service on the effects of grazing on a region-wide basis, but this region-wide consultation, which

concluded in December 1997, did not include an analysis of the effects of grazing on individual allotments. In the absence of these

site-specific consultations, the Forest Service was arguably out of

compliance with the Endangered Species Act.

The Southwest Center lawsuit was filed in October 1997, and it

was consolidated with a lawsuit that was filed by Forest Guardians

in December 1997. These two lawsuits, collectively, named over 150

allotments for which consultation was lacking, and the complaints

in both cases asked that all grazing on all these allotments be

stopped pending completion of the consultation.

Shortly after these lawsuits were filed both the Arizona Cattle

Growers’ Association and the New Mexico Cattle Growers’ Association moved to intervene, and they were granted intervenor status.

In early March 1998, the Forest Service and the Fish and Wildlife Service and the Department of Justice convened a conference

call among all the parties, including the intervenors, to explain the

proposed process for completing consultation. Soon after this discussion, the plaintiffs—the environmental plaintiffs—moved for a

preliminary injunction against grazing on all the allotments that

were identified in their two complaints. We filed a response in

which we pointed out that most of the riparian habitat of species

identified had already been excluded from grazing, and for the remainder, grazing in riparian areas would be excluded in the near

future. So it became apparent to everybody that the Forest Service

was already excluding grazing in most of these riparian areas on
44

the majority of the allotments so that settlement would be a good

idea to discuss.

A few days prior to the preliminary injunction hearing, all of the

parties—all of the parties, including the intervenors, began discussions—this was about 5 or 6 days as you’ve heard, before the hearing—to determine whether we could avoid the need for a hearing.

And, initially, counsel for the intervenors participated. They voluntarily withdrew from those discussions. We didn’t kick them out.

Shortly after the first stipulation was signed, and they didn’t like

it, they went to court and asked for a temporary restraining order

against enforcement of the stipulation. That’s their perfect right to

do so. They argued that the Forest Service couldn’t legally make

the management changes that were in the agreement, and that if

the agreement was implemented it would cause them economic

hardship.

After the hearing, the district court or the magistrate recommended that their motion be denied. The magistrate found that

the Forest Service had the authority to make the changes necessary to affect the management direction and that the permittees

would have the ability to participate in the changes and they would

retain their right to contest them. The courts said specifically, ‘‘if

the Forest Service does not follow through on its plans to exclude

grazing on a shortened timeline in order protect the listed species,

and a violation of the ESA results, the harm could be truly irremediable.’’

The district court judge accepted the magistrate’s recommendation. The consultation has been progressing on schedule. A draft biological opinion was issued and it’s now projected that the final

opinion will be issued in the middle or end of August. The delay

is caused by the request of the Cattle Growers for more time to

comment.

I would be happy to answer any questions the Committee might

have.

Thank you.

[The prepared statement of Mr. Coppelman may be found at the

end of the hearing.]

Mr. POMBO. Thank you.

Ms. Towns.

STATEMENT OF ELEANOR TOWNS, REGIONAL FORESTER FOR

THE SOUTHWESTERN REGION, U.S. FOREST SERVICE AND

DAVE STEWART, ACTING DIRECTOR OF RANGE MANAGEMENT

Ms. TOWNS. Thanks for the chance to discuss the Endangered

Species Act and grazing in the Southwest. I’m accompanied by

Dave Stewart, the Region’s Acting Director for Range Management.

Folks, this is not a new controversy. Over a hundred years ago,

Gifford Pinchot, the first chief, argued that grazing should be permitted and regulated, but not prohibited. The Congress apparently

agreed. Over the years, and in many laws, you told us to regulate

use and occupancy, but preserve the forest, and later you told us

to permit grazing and to protect the public’s natural resources. And

so we walk that tight rope, seldom pleasing ranchers or environmentalists, each absolutely convinced that we are in the pocket of
45

the other. I’m not complaining. I love my job. I’m even going to love

it at the end of today.

I went to the Southwest to find middle ground between laws that

require protection of the resources and laws that authorize grazing,

and I think that’s what you want, as well. So let’s talk about this

Southwestern region. We are 12 national forests, and more than 20

million acres of Federal land in Arizona, New Mexico, Oklahoma,

and Texas. It’s a large and diverse area with ecosystems such as

the Colorado Plateau in Arizona and New Mexico, the Chihuahuan

semi-desert in New Mexico, the Sonoran Desert in Arizona, and

grasslands in Oklahoma and Texas.

Our range management program is extensive and it’s important

to this agency. We have over 1300 grazing allotments and over

1600 permits regulating about two million animal months of grazing by cattle, horses, sheep, and goats. That’s about 18 percent of

the permits and 16 percent of the animal months of grazing on national forest systems lands service-wide.

In 1995, we faced the grim reality that over one-third of our

grazing permits would expire by the end of 1996. We are scheduled

to complete analyses on about 600 of some 1400 permits by the end

of this year. Priority was given to allotments with habitat or species, clean water, or riparian issues.

Well, shortly after we started environmental analysis of those allotments, and that’s one process, we began forest plan level—not

site-specific—forest plan level consultation on ESA. We knew it’d

be a while before site-specific analysis would be done and so we established region-wide management requirements to avoid jeopardizing those species or destroying habitat until we could do site-specific analyses. We even put those management requirements into

the 1998 annual operating plans for each grazing allotment.

But, nonetheless, in 1997, we were sued twice for allowing grazing on 160 allotments before required site-specific consultation was

completed. So, in February, we initiated site-specific consultation

on those allotments and, while we were at it, on another 600 with

habitat for listed species.

And, by the way, I’ll take a moment to say that your government

worked in that instance and we worked hard on behalf of the resources and the permittees. Two agencies mobilized forces and consulted on 750 allotments in record time. The majority, around 600

of them, were determined not to have affected species or their habitat. Over 100 were found not to have adversely affected listed species. And, so it came down to this: of 750 allotments, 21 were found

to have adversely affected species or their habitat and even though

the livestock were moved around, seasons were changed, none—

zero cows, were removed from those allotments as a result of those

stipulations. To the good, I’m told, that some ranchers elected to

remove cows in response to consultation on their allotments.

And, so, here we are: 21 allotments, zero cows removed as a result of these stipulations, and two approximately month-long stipulations. But back to my story. We started NEPA, and we started

forest plan consultation, not site-specific. Then we were sued for

not doing site-specific consultations. We started that and then the

plaintiffs moved to take livestock off until site-specific consultation
46

was done. And to avoid the risk of having the livestock taken off,

in June, we signed stipulations with each plaintiff.

A couple of points about those stipulations: they were short-term,

stop-gap agreements that would have ended today had we not honored the ranchers’ request for more time to study the draft biological opinion. Now, some of the ranchers, and some of you believe

that in negotiating the stipulations, we cut deals imposing new and

dire conditions. The truth is that, for the most part, the stipulations formalize management practices that already were being implemented or planned to be implemented. And I thought I heard

Mr. Bason refer to that.

In our judgment, signing the stipulations protected the resources

and kept the livestock on the land and that was our choice of evils.

The consultation will soon be completed. Additional management

requirements may very well be necessary. I’m almost through, Mr.

Chairman. We will continue to make progress on NEPA analyses

and new allotment management plans. All of this takes time and,

no doubt, the uncertainty is unsettling to some. Resolving this

grazing situation in the Southwest is a priority for this administration. To that end, the President has asked for a $20 million increase in service-wide range management dollars for 1999; a $3

million increase for habitat management for listed species.

To those who might think that denying these increases will restore the status quo, I say that we need the money to comply with

law. Failure to do so puts grazing and resources in the hands of

litigants and the courts. And second, as has been referred by Mr.

Lohoefener, at the insistence of two secretaries, agencies in the

Southwest came together around this issue. We are committed to

improving collaboration among the users, Federal agencies, States,

local governments, tribes, and the public; and it’s working. I met

with the Natural Resources Conservation Service officials to discuss range improvement budgets for the affected allotments, and

it’s our hope that in the future the improved collaboration among

the parties will enhance sustainable resource management, reduce

the polarization litigation that currently are occurring in the region.

Thank you.

[The prepared statement of Ms. Towns may be found at the end

of the hearing.]

Mr. POMBO. Thank you.

Mr. Coppelman, you said in your testimony that, shortly before

the settlement, that all of the groups were called together and

given the opportunity to negotiate and that the cattlemen were

part of the process. Is that the 6 days that we heard testified to

earlier?

Mr. COPPELMAN. Right. Nothing—there were no negotiations before the 6 days.

Mr. POMBO. There were no negotiations?

Mr. COPPELMAN. Well.

Mr. POMBO. Your testimony is considered under oath and I didn’t

swear anybody in, but, if you need to confer with someone else,

please do.

Mr. COPPELMAN. No, my understanding is that the negotiations,

you know, were spurred by the scheduling of the preliminary in-
47

junction and—so that the negotiations essentially started 6 days

before the hearing. That’s my understanding. I was not involved in

the negotiating.

Mr. POMBO. The Committee has received statements from others

that would indicate that the negotiations between Justice Department Forestry were—in the environmental groups were happening

before the 6 days; that they were discussing a possible settlement

and possible provisions that would be acceptable to both of you and

that it was only up to the 6 days that the cattlemen were called

in.

Mr. MENGES. Are you talking to me?

Mr. POMBO. I’m going to give him an opportunity to answer.

Mr. MENGES. I thought you were looking at me so——

Mr. POMBO. No.

Mr. COPPELMAN. Well, there could have been talks before that,

but there was——

Mr. POMBO. Talks are what I’m talking about. Yes.

Mr. COPPELMAN. The 6 days—there was a specific proposal,

a——

Mr. POMBO. You had a proposal that you put on the desk and

said this is what we’re going to talk about at the 6 days?

Mr. COPPELMAN. We didn’t draft the proposal. I think the proposal was drafted by the environmentalists and it was circulated

among all the parties.

Mr. WIYGUL. I believe that’s correct.

Mr. POMBO. I want you to be very careful about how you answer

this because I don’t want this to go anywhere beyond this hearing.

The draft proposal that was put together, was the Justice Department and the Forest Department part of that draft proposal in negotiating what was in and what was—what way possible settlement could look like?

Mr. COPPELMAN. Yes. Our attorneys were involved in——

Mr. POMBO. Before the 6 days.

Mr. COPPELMAN. Mr. Chairman, the trial attorney who was involved in discussion isn’t here, and I don’t know the specific answer. I’ll have to get back to you on that then.

Mr. POMBO. Ms. Towns, were you part of the discussions?

Ms. TOWNS. No, sir. I have been regional forester for a grand

total of 3 months now.

Mr. POMBO. Mr. Stewart, that is with you, was he part of the discussions?

Mr. STEWART. No discussion with our plaintiffs. All of our discussions were with our Department of Justice attorneys, in terms of

articulating to them what the status of these various allotments

were with respect to various actions that we were taking to protect

riparian areas. But no discussions with plaintiffs.

Mr. POMBO. You had no discussions with the plaintiffs?

Mr. STEWART. I had no discussions with plaintiffs. To my knowledge, the agency did not. The only discussions that were taking

place is that as we continued to administer grazing permits in the

field, on our forest and on our ranger district, there were discussions between those people, not directly involved with litigation,

that are responsible to work with the permittees to try and work

out resource issues.
48

Mr. POMBO. If we have one of the employees of the Forest Service

who steps forward and says that he was told that the settlement

would include fencing off the riparian areas several weeks before

the 6-day period—he was told by his superiors that—how would he

come up with that information if you were not discussing this settlement with someone?

Ms. TOWNS. I have no idea, sir.

Mr. COPPELMAN. Well, let me say, Mr. Chairman, that there

were many discussions right from the get-go, when these lawsuits

were filed, about how to respond and what we were going to do—

what the government was going to do in response to the lawsuits.

There were many conversations among the agencies and, in fact, on

February 6, 1998, well before this hearing, the Fish and Wildlife

Service and the Forest Service entered a grazing consultation

agreement where they set forth how they were going to carry out

these—the consultation requirements on the specific allotments,

and there were probably discussions about what kinds of things

might be required as a result of this consultation. I mean, I can

provide that for the record, if you don’t already have it.

Mr. POMBO. Please do. Would it be fair to say that there were

informal conversations with the plaintiffs about what could possibly be in the settlement agreement before they drafted the agreement—six days prior to the settlement?

Mr. COPPELMAN. Mr. Chairman, I really, without having a trial

attorney here would—I don’t want to guess, as you might imagine.

I mean, and I will definitely get an answer to you.

Mr. POMBO. Well, the request was that the trial attorney also appear at the hearing and I’m a little bit perplexed that we go

through the trouble of trying to bring people here for a hearing and

we don’t have people who can answer questions. And this is not a

slam on you or your ability. I’m sure you do your job very well, but

the purpose of the hearing was to try to find out what happened

and to try to answer some of the questions that the members have,

and for the administration to provide us with people who are not

in position to answer questions is very difficult for us.

I would appreciate it if you would provide that for the record. Let

me ask you: Were the Cattlemen’s Association intervenors included

as well in any informal or formal conversations that occurred before the 6 days?

Mr. COPPELMAN. Prior to the 6 days? That will have to be included in the answer that I provide to you.

Mr. POMBO. Can I ask the Forest Service? Were you discussing

with the Cattlemen’s Association and the other intervenors what a

possible settlement could look like? Mr. Stewart, I know Ms. Towns

wasn’t there. Mr. Stewart, can you answer that?

Mr. STEWART. Yes. The answer is no. But I would like to say—

make some remarks about that. Well over a year ago, before either

of these lawsuits were filed, the Forest Service directed our district

rangers to look very closely at allotments that had already been

mentioned in notices of intent to sue. We had several 50-day notices of intent to sue. We had the allotments, they were actually

mentioned. They were written out for us to look at and we knew

that these were potential allotments that could be under litigation.

And, so we directed our forest supervisors and district rangers to
49

look very closely, in the Summer of 1997, what changes would need

to be made in annual operating plans for 1998 grazing season, irrespective of any of this litigation. So——

Mr. POMBO. So you discussed it with the cattlemen before?

Mr. STEWART. We discussed it individually with grazing permittees, not necessarily the cattlemen’s organization in the context of

settlement.

Mr. POMBO. Mr. Menges——

Mr. STEWART. But there we no lawsuits filed at that point in

time.

Mr. POMBO. Mr. Menges, is—are you aware of these conversations taking place about the riparian areas a year before?

Mr. MENGES. The Forest Service, I know, out on the ground on

an individual basis talked with certain permittees. It’s an indication of how intimidated that the agencies have become by these

lawsuits because nearly a year before this thing ever went to court,

they were out there managing as if they were managing for endangered species before the consultation was ever complete, just at the

threat of a lawsuit. They were starting to ask these ranchers to get

their cattle out of there and amend their annual operating plans

to do that. So, yes, I think that they did talk to them. We’ve seen

the same situation in other areas of the State with the gosshawk.

That species has never been listed. The Forest Services has adopted guidelines for management of goshawks. Might as well be listed.

Mr. POMBO. Mr. Lohoefener——

Ms. TOWNS. Mr. Chairman, if I may address that. Please.

Mr. POMBO. Yes. Go ahead.

Ms. TOWNS. We were out on the ground talking with permittees.

We—you know there’s been some question about enforcement over

time. We’ve been out on the ground over a number of years discussing range management issues and doing that which we’re supposed to do in terms of stewardship. I think it’s a presumption to

presume that prior to the lawsuit that we were out there to discuss

this in relation to endangered species. As a matter of fact, I believe

I’ve testified that as to those stipulations. What they did was essentially carry over, memorialized, formalized that which had already been discussed and negotiated on the annual operating

plans, which is part of our responsibility as regulators.

Mr. POMBO. Well, I would hope that over the course of time that

you would discuss this with the permittees. I don’t believe that is

in question. I don’t think anybody questions that; that over the normal course of business, you would discuss management issues with

the permittees.

Mr. Lohoefener, during the period of time before the 6 days before the settlement, did you or anyone in your agency have informal or formal conversations with the plaintiffs to discuss what a

possible settlement would look like?

Mr. LOHOEFENER. No, I did not, Mr. Chairman, and to the best

of my knowledge no one in the Service did.

Mr. POMBO. So, what I’m to understand from the testimony, the

Fish and Wildlife Forest Service, and the Justice Department is

that the plaintiffs came in with a draft settlement that you did

not—had not seen before the 6 days prior to the settlement, and

you sat down with them to negotiate that at that point. You’re tes-
50

tifying here, before Congress today that, to the best of your knowledge, you had not seen or discussed the draft settlement before

that 6 days before the settlement occurred?

Mr. LOHOEFENER. Yes, I am, Mr. Chairman.

Mr. COPPELMAN. I’m going to check, Mr. Chairman.

Mr. POMBO. Ms. Towns?

Ms. TOWNS. We’ve testified that we have not—we didn’t participate in those discussions with plaintiffs.

Mr. POMBO. Mr. Hayworth.

Mr. HAYWORTH. Thank you, Mr. Chairman, and I thank the Subcommittee’s indulgence in allowing us to come in today, and my colleague from Arizona and I, and I appreciate by time on the full

Committee in the 104th Congress. And, I’m listening with great interest to some of these comments. Again, as I’m more than eager

to point out, JD does not stand for Juris Doctor. I’m not a lawyer,

never played one on TV, and, yet, we hear from one of my Arizona

friends what, in essence, can be called a ‘‘chilling effect.’’ That the

mere threat of litigation leads to actions presumptive in nature as

to exclude cattle from certain areas because of the threat that

something someday might happen.

So, in essence, I believe, Mr. Menges, is it safe to say that it’s

your notion that a ‘‘chilling effect’’ has come about?

Mr. MENGES. Absolutely.

Mr. HAYWORTH. Mr. Coppelman, what is the name of the trial attorney who should be here today? I think of Mr. Bason’s remark

about that fellow, not me, earlier this afternoon. You know, it’s not

me. We’re not involved in this. I didn’t have personal involvement.

Who is the trial attorney who should be here today?

Mr. COPPELMAN. The trial attorney who was on the case is

Chrissy Perry.

Mr. HAYWORTH. I’m sorry?

Mr. COPPELMAN. Chrissy Perry.

Mr. HAYWORTH. Chrissy Perry. Again, I guess that was not your

call as to who was here, but, and I don’t want to suggest to the

chairman how to run the Subcommittee, but it might be good to try

and get Ms. Perry into some of these discussions because, although

we’ve heard, well, we’re not certain about formal negotiations, I

think it’s safe to infer that, through the parsing of statements,

there are probably some working documents and some ideas,

whether drawn up on the back side of napkins or legal pads, somewhere—probably, some sort of working documents or drafts were

circulated. But, again, I understand you can’t answer because you

weren’t the trial attorney involved, and we probably need Chrissy

Perry here.

Mr. Menges, let me go to your stewardship of the land because—

and I do wish that Dr. Ohmart, our fellow Arizonian, were here.

I saw him earlier. I’m not sure if he’s still here with us in the gallery—in the audience today. But, it’s very interesting to look at

your photographic evidence that seems to show us good stewardship of the land including areas where cattle have grazed. Could

you go into more detail on what you’re able to do and why you’re

able to win an award and why on earth, now, they’d tell you to get

out?
51

Mr. MENGES. Well, they told me to get out because it’s potential

habitat for one fish species and one bird species—a cactus

ferrigimous, pygmy owls, and razorback suckers.

Mr. HAYWORTH. So, just a second. It is potential——

Mr. MENGES. Right. Neither of the species exist there. But the

biological opinion that came out as a result of the lawsuit by the

Southwest Center stated that if cattle were grazing in a riparian

area that they were taking these species. Therefore, the BLM said

that they had no alternative but to implement the terms and conditions of the biological opinion. I was sent a full force and effect decision in which I have appealed; although, by it being full force and

effect, it remains in effect for the duration of the appeal. And we

have appeals in Arizona that have been before the interior board

of land appeals for—since 1991, and haven’t been heard.

Mr. HAYWORTH. So appeals that have been in the hopper since—

for 7 years now?

Mr. MENGES. Right.

Mr. HAYWORTH. Most times when they’re criminal cases, the

statute of limitations would expire, I believe, sir.

Mr. MENGES. With regards to the stewardship question, I believe

we’ve done some things with grazing that you couldn’t do without

grazing the areas. After a flood event you’ll find vertical cuts in the

banks. We put cattle in there and rounded those cuts off so that

vegetation could grow on them. They can’t grow when it’s vertical.

We reduced some fireloads in there. The annual vegetation is very

thick back under the mesquite bosque so you can reduce the danger

of fire which would—could be devastating to habitat.

We’ve had some success at reducing salt cedar invasion, by grazing in the winter; not putting salt out for the cattle. We have been

able to get them to eat the salt cedar. It tastes salty to them. And,

so that’s a non-native species that the agencies are very concerned

about invading.

I think of a riparian area like any other area. The fundamental

principles of range management apply and you can use livestock as

a management tool to achieve your objectives. They can work in

the seeds. Think of a person’s yard, for example. You mow your

grass, you prune your trees, you fertilize, then you do it all over

again, and cattle can be used as a livestock management tool to do

those things, and, I think we’ve seen the results here because this

area on my allotment was one that was brought into proper functioning condition, as I mentioned. And some of the areas that had

had livestock completely eliminated were not in PFC the first time

the BLM monitored this 29 mile stretch of river.

Mr. HAYWORTH. Just one final note, and I appreciate the indulgence of the chair. How much work is involved in trying to be a

good citizen and do the right thing? I mean, the photographic evidence here is compelling. Do you feel you’ve gone the extra mile to

be a good citizen? Are you, basically, being slapped in the face by

these presumptive regulations?

Mr. MENGES. This is an area—I live close to town. There is private lands above my allotment. There is private land below my allotment that belongs to other ranchers. We have to maintain those

fences across those—the river between the private land and the

public land. Every time the river rises, we have to go back and do
52

that, and put the cattle out. There is a lot of recreational activity

in this area—leaving the gates open—cattle getting in, so it is a lot

of work to keep cattle out of these areas.

I’ve always had the incentive to do that because I would be rewarded by being able to graze this area in the winter. But now,

there’s really not any incentive. We just have the heavy-handed approach—the Federal Government—saying that if you don’t keep all

the cattle out of there, if you don’t maintain the fences, then you

risk losing your permit.

Mr. POMBO. Mrs. Chenoweth.

Mrs. CHENOWETH. Mr. Menges, did I understand you to say that

the Forest Service asked you to intervene in the grazing litigation?

Mr. MENGES. Yes. We received—Doc Lane of the Arizona Cattle

Growers’ Association received a phone call from Region 3—I do not

know the individual. I could find out the name. Mr. Lane then

called the officers, and I’m one of the officers of the Association,

and said, the Forest Service has been in touch with us. They say

that they think we may be in some trouble on this preliminary injunction, that we need to get intervenor status in both suits. I

think we may have had it in one suit at the time. We went out and

got the intervenor status. And make no mistake, the information

that you received earlier was correct. The Cattlemen’s Associations

were contacted before the court hearing about an agreement that

had already basically been, I suppose, drafted. I don’t think we saw

it, but our attorneys told them if that’s what it said, certainly we

would not sign on to it. Then, at the hearing, when the court rejected that as a stipulation, the Cattle Growers’ Association—well,

that was basically the end of the hearing and the Forest Guardians

and the Forest Service went into a room right there in the court

house. They did not ask the Cattle Growers’ Associations to participate. They cut the agreement in that room. That is now the agreement that the Forest Service is using as a basis for altering the annual operating plans on the permit—for the permittees and excluding the grazing off of these allotments.

Ms. TOWNS. Mrs. Chenoweth, Congressman?

Mrs. CHENOWETH. Yes.

Ms. TOWNS. I was just wondering if I might respond to that?

Mrs. CHENOWETH. Yes.

Ms. TOWNS. The stipulations—and this may be about the third

time that I’ve said this, but it seems to be important to repeat. The

stipulations memorialized what was in annual operating plans that

had been worked out since, in 1995, when we began to look and

see that a number of those permits were going to expire in 1996

and we were instructed by the Burns amendment to do NEPA compliance on our entire workload.

The stipulations—I asked that question specifically before we

came here—memorialized that which had already been worked out.

There were no deals cut. I think——

Mr. POMBO. Would the gentlelady yield for just a minute? If the

stipulations were annual operating procedures, why was the lawsuit filed?

Ms. TOWNS. There are a number of technical reasons why others

might choose to file a lawsuit. As I mentioned before, there were

several layers of planning. We had embarked upon two of them and
53

the final one when we were in the programmatic—the fourth plan

level of planning—when we were into that process with Fish and

Wildlife Service, the lawsuits were filed saying that we had not

done site-specific environmental analyses in compliance with the

ESA. We were on a track doing planning at one of two—at two levels.

Mrs. CHENOWETH. There’s a difference, though, between the stipulated agreement and the settlement agreement. Yes. There definitely is. So, Judge Reduttle rejected the stipulated agreements.

Ms. TOWNS. There is no settlement. The lawsuit is still in effect.

Mrs. CHENOWETH. There was a settlement agreement that

the——

Mr. COPPELMAN. Can I just say that the chronology is that the

judge—there’s a Federal district judge and a magistrate. The hearings were held in front of the magistrate at the direction of the

Federal district judge. The magistrate was holding a hearing. During that hearing word came back from the judge that he was not

going to sign the stipulation because the Cattle Growers were not

on it. OK? So, then, the plaintiffs and the Forest Service and Department of Justice reached an agreement without—that would not

have to be approved by the court. Then what happened was the

Cattle Growers filed a temporary restraining order, that evening,

to try to stop that stipulation from being enforced, and a hearing

was held on that. The magistrate rendered a written—a fairly comprehensive—written decision denying—recommending that the

TRO be denied.

The same judge, who rejected the earlier stipulation, after the

hearing, after the recommendation of the magistrate, approved the

recommendation of the magistrate denying the temporary restraining order. That’s what happened.

Mrs. CHENOWETH. Mr. Menges, do you believe that the settlement agreement simply memorialized practices, policies, and procedures already in place?

Mr. MENGES. I can think of three permittees that had their altered annual operating plans amended, right off the top of my

head; just some of my friends, and the forest—the local forest rangers called a meeting and I attended that meeting at the Clifton

Ranger district, and they talked about the changes, and people had

changes to their annual operating plans right there that day that

were the result of this agreement. And, they talked about how they

were going to enforce it and they were going to hire somebody to

ride and take pictures and see if they can find somebody that had

let cows come into the river.

Mrs. CHENOWETH. And the parties that were affected with the

changes——

Mr. MENGES. Yes.

Mrs. CHENOWETH. [continuing] were not a party to the agreement at all—this settlement agreement?

Mr. MENGES. Oh, no. These——

Mrs. CHENOWETH. Now did the Forest Service offer to pay your

legal fees? I understand your legal fees were about $100,000.

Mr. MENGES. Between the two associations, no. We have to get

that out of our members.
54

Mrs. CHENOWETH. Well, if you had agreed to the settlement

would they have paid your legal fees?

Mr. MENGES. I don’t know. I doubt it——

Mrs. CHENOWETH. Mr. Coppelman.

Mr. MENGES. This case——

Mr. COPPELMAN. They were intervenors.

Mrs. CHENOWETH. So the Forest Service asked you to intervene?

Mr. COPPELMAN. You get attorneys’ fees if you beat us basically.

And this case isn’t over. And this case is only—all that’s happened

is that they—you know, were at the preliminary injunction stage.

Nobody is entitled to attorneys’ fees, nobody’s applied for attorneys’

fees. So I can’t answer the question of who, ultimately, may get attorneys’ fees in this case.

Mrs. CHENOWETH. So, how much will the plaintiff in these two

cases—the Forest Guardians and FWCBD receive in attorneys’

fees?

Mr. COPPELMAN. I don’t know whether they will and, if they do,

I have no idea how much that will be at this point. I mean, it’s

based upon records that they submit to us—timesheets and all that

kind of stuff—if they’re entitled to attorneys’ fees.

Mrs. CHENOWETH. So, in your opinion, they’re entitled to attorneys’ fees if they present proper records and costs?

Mr. COPPELMAN. No. I said that they—if they are the prevailing

party, as determined under the law, then they would be entitled to

attorneys’ fees, just like industry attorneys would be entitled to attorneys’ fees. And we’ve paid plenty of money to industry counsel,

as well.

Mrs. CHENOWETH. Will the intervenors—the cattlemen—receive

any reimbursement of their attorneys’ fees and court costs from the

government at all?

Mr. COPPELMAN. I can’t—that’s way in the future and we’ll just

have to see how this case resolves itself and who submits—you

know, makes a motion for attorneys’ fees. I wish I could be more

helpful, but I just can’t right now.

Mrs. CHENOWETH. I have a lot of other questions, Mr. Chairman,

but I will yield back my time that is up.

Thank you.

Mr. POMBO. If the gentlelady has other questions that she would

like to ask at this time, we’re nearly concluded with the hearing

so you may go.

Mrs. CHENOWETH. Thank you.

Mr. POMBO. I ask that she be given an additional 5 minutes.

Mrs. CHENOWETH. If the Cattlemen’s Association sues to challenge a settlement in a separate suit, as the judge in this case has

seemed to indicate that he would be suggesting that they can, will

they ever get an opportunity to present their side of the case and

their witnesses in court?

Mr. COPPELMAN. Well——

Mrs. CHENOWETH. I mean are we going to be facing endless, outof-court settlements——

Mr. COPPELMAN. Where we are is the intervenors moved for a

temporary restraining order. The temporary restraining order was

denied. Now, they could have moved for—then for preliminary

injunc-
55

tion. They could appeal. They haven’t chosen to—they haven’t tried

to anything more.

Mrs. CHENOWETH. Do you feel harm has been rendered by this

decision based on Mr. Menges testimony?

Mr. COPPELMAN. Do I feel——

Mrs. CHENOWETH. Has there already been damage caused as a

result of the decision and Mr. Menges’ testimony that certain individuals are losing their privileges?

Mr. COPPELMAN. I’m not in a position to judge that—what’s happened to individuals. I mean, that—if Mr. Menges feels he’s been

harmed, I mean, clearly, in enforcing the Endangered Species Act,

some cattle have been removed from Federal lands. Yes.

Mrs. CHENOWETH. Mr. Coppelman, did the court ever issue any

order or decree that mandates the implementation of this settlement agreement?

Mr. COPPELMAN. No. That’s not the way it was presented procedurally. Procedurally, it was presented to the magistrate and the

Federal district court judge on a motion—a temporary restraining

order to prevent implementation of the stipulation.

Mrs. CHENOWETH. So there’s never been an order or decree that

mandates the implementation of this settlement agreement, then?

Mr. COPPELMAN. A judicial order, no.

Mrs. CHENOWETH. Thank you. I have other questions I’d like to

submit in writing.

Mr. POMBO. Mr. Hayworth.

Mr. HAYWORTH. Mr. Chairman, I just am cognizant of the fact

that one of the key players, if you will, or participants, the trial attorney, was, for whatever reason, not here with us today. Might I

suggest, commensurate with Congressional protocol and your discretion as the Subcommittee chairman, that we request of the trial

attorney, and, indeed, our friends from the Department of Justice

and the others involved in this to submit all written correspondence, and for that matter, informal correspondence, which may

exist prior to the settlement of this case, involving the litigants,

which may indicate whether or not there was some sort of pre-settlement established—or settlement established before the 6-day period that you’ve talked about. And, I would just—I would make

that recommendation to you, and, of course, would be happy for

you to formalize that in some way and I know that, I’m sure that

our friends in the Justice Department would be happy to comply

with such a request.

Mr. POMBO. In conferring with counsel and the full Committee

chairman, that will be taken under advisement.

Mr. HAYWORTH. I thank you very much, Mr. Chairman. I’d like

to thank those witnesses, especially my constituent from Arizona,

for being here today.

Mr. POMBO. We do have further questions that we will be submitting to you in writing—to all of you. I have a number of questions that I don’t feel were answered here today and I have other

questions that will be submitted to you. If you could answer those

in writing in a timely fashion for the hearing, it would be of great

help to the Committee and would avoid future hearings, at least on

this.
56

I thank you for coming in and testifying. Your testimony was

very valuable to the Committee. I, again, apologize for the length

of the hearing—the delay in the hearing, but we don’t control the

floor schedule. So. But, thank you all very much for being here.

Mr. HAYWORTH. Thank you, Mr. Chairman.

[Whereupon, at 5:44 p.m., the Subcommittee adjourned subject to

the call of the Chair.]

[Additional material submitted for the record follows.]
57

STATEMENT OF JIMMY R. BASON

Let me start by thanking you Chairman Young and members of the Committee

for the opportunity to speak to you today, although I would rather have my fingernails pulled out with pliers. But, you and your fellow Congressmen need to know

what is happening to American citizens, American taxpayers who are working hard

to raise their families. Unfortunately, my family and I are in the sorry position to

be able to illustrate that story.

I have owned a ranch in Southwestern New Mexico for 36 years. Unlike many

of my counterparts, I did not inherit the ranch. I grew up working on other people’s

ranches. I was able to put together my own operation after serving my country in

the Air Force for five years. I had planned to pass the ranch, comprised of Federal,

state and private land to my son, Brent, and his young family. We have begun that

process and Brent placed himself heavily in debt last year with federally guaranteed

loans to begin buying me out of the operation.

Brent is 29 years old. He is the father of a three-year-old Typhen, who I call

‘‘Jefe’’ because he thinks he runs the outfit, and my newest pride and joy, onemonth-old Cord. Brent’s wife Stephanie worked on the ranch right up until delivering Cord last month. Immediately following the birth, she was up fighting with

the Bureau of Land Management to allow our local 4-H group to use a building the

agency had promised to let the kids use for summer projects.

Our ranch is largely comprised of two (2) large forest allotments on the Gila Forest, which brings us to the topic of today’s hearing, citizen lawsuits as provided for

in the Endangered Species Act (ESA), the Clean Water Act (CWA) and the Clean

Air Act. The Southwestern Region of the U.S. Forest Service, which includes 11 forests in Arizona and New Mexico, has become the hotbed of environmental litigation.

Both the Forest Guardians and the Southwest Center for Biological Diversity have

filed suits against the U.S. Forest Service under the ESA. Their initial attempt was

to remove livestock from some 160 grazing allotments in New Mexico and Arizona.

Please keep in mind that all FEDERAL GOVERNMENT permittees operate

under the direction of and with the cooperation of THE FEDERAL GOVERNMENT

on a yearly basis. Each year the permittee manages his allotment pursuant to an

annually updated and signed agreement with THE FEDERAL GOVERNMENT.

Instead of working with and defending us as well as themselves, we read in the

newspapers that THE FEDERAL GOVERNMENT says cowboys haven’t changed in

20, 50 or even 80 years. If there is a problem on Federal lands, it is THE FEDERAL

GOVERNMENT who has created it by not pursuing proper management and not

allowing permittees to do what they know to be best.

The radical environmentalists have no regard for the families or rural economies,

which they will kill if their suits are successful. And, their agenda has nothing to

do with the protection of any endangered specie or the environment. Cattle don’t

eat fish or birds and proper grazing management practices will allow for fish, birds

and cattle. The radicals want to control the land and they are using citizen lawsuits

to do it.

At the present time our allotments are not a part of ANY of the ongoing citizen

suits filed by radical environmentalists. However, that has not stopped the impact

of citizen suits on us or many of our neighbors. My son and his young family are

literally facing bankruptcy at the hands of THE FEDERAL GOVERNMENT who

guaranteed the loan them the money to go into business. I know they are not alone

in this crisis.

We are part of the first 33 allotments in the Gila National Forest, one of the 11

forests in the Southwestern Region, to undergo environmental analysis as part of

the National Environmental Policy Act (NEPA) process. The U.S. Forest Service

(USFS) began the analysis with an initial scoping document in early March 1998.

Given what I have learned since then, I have come to refer to this Federal agency,

as well as all others as THE FEDERAL GOVERNMENT.

Between the two allotments, we are authorized to run 450 head of cattle yearround. Due to the drought that we have experienced over the past several years,

we have voluntarily been running only 300 head, taking non-use on the balance.

Brent and Stephanie were working with THE FEDERAL GOVERNMENT and all

seemed well. We have documented monitoring for our operation for some 50 years

and NEPA analysis was done about nine years ago. That all changed near the end

of April.

As part of NEPA our Sierra County Commission got involved in the process on

behalf of affected permittees in the County. In mid April Brent told the Commission,

in a public meeting attended by FEDERAL GOVERNMENT employees, that unless

things changed, there would be no need for the Commission to go to the trouble.
58

This was publicly confirmed by the FEDERAL GOVERNMENT employees in attendance.

A mere nine days later that all changed. Brent was called in by what I now refer

to as the ‘‘bully squad.’’ Brent was confronted by some seven different FEDERAL

GOVERNMENT employees who told him that because of a court order resulting

from a citizen suit filed by the Forest Guardians against the USFS, his permit

would be cut to 92 head.

First Brent informed the FEDERAL GOVERNMENT that there was no court

order, rather there was a settlement agreement between the Forest Guardians and

the USFS, which had no force of the court or the law. When they argued with him,

he pulled out a copy of the settlement agreement, which I had obtained when I attended the hearing on the issue. That did not deter them.

Brent then pointed out that the operation would not be economically viable at

that number. He stated that he would need at least 200 calves to service the debt

he had undertaken to buy the permit to marginally service the debt under THE

FEDERAL GOVERNMENT’s lending agency’s guidelines previously agreed to. The

‘‘good cop’’ in the squad, then began negotiating on Brent’s behalf. Pretty soon they

had worked back up to 192 head. The good cop suggested that THE GOVERNMENT

just go up the eight additional head to arrive at the number Brent needed, The ‘‘bad

cop’’ absolutely refused. He said THE FEDERAL GOVERNMENT had been pushed

around enough in the Northwest they weren’t going to take any more. They had to

do something dramatic and this was it.

Brent left the meeting with no resolution. Among the reasons THE FEDERAL

GOVERNMENT mentioned to justify their drastic cut was a computer model being

used to assess carrying capacity. It appears that all the monitoring we have done

over the past five decades has little or no value. This computer model, which THE

FEDERAL GOVERNMENT now wants to call a calculator, has built-in assumptions

such as the idea that cattle will not graze on a slope of over 40 percent. I don’t know

how many of you are familiar with the terrain in New Mexico, but no one has told

our cattle they won’t eat from a slope of more than 40 percent. They have been

doing it for years.

Additionally, many of the management practices livestock producers have employed over the years like placing mineral or supplemental feed in strategic locations are designed to ensure that the animals will utilize grazing throughout the

allotment and maintaining equitable distribution of grazing. These management

practices were not taken into consideration by the computer calculator.

Another assumption is that cattle will not graze beyond two miles from any watering facility. That’s something else nobody has told our cattle. Whole breeds of cattle are promoted for their ability to travel miles from water. Additionally, THE

FEDERAL GOVERNMENT didn’t even have correct information about where there

were watering facilities on the operation. Some of that has since been corrected in

THE FEDERAL GOVERNMENT’s files, but incorrect information has already been

provided to literally hundreds of people, many of whom are dedicated to removing

livestock from the land.

There is also the arbitrary decision by THE FEDERAL GOVERNMENT that only

35 percent of the forage can be utilized. AND, the computer calculator did not take

into account all the kinds of forage available. No forage value was given for the

browse, which the main forage source on these allotments.

Brent was allowed to drive to Silver City to look at the model. Having learned

his lesson about the ‘‘bully squad,’’ he took our range consultant, a former USFS

employee, as well as a range specialist from the New Mexico Department of Agriculture (NMDA) with him. None of the three saw anything to support what THE

FEDERAL GOVERNMENT was proposing to do with our allotment.

As part of the NEPA process, we were told that each permittee had the opportunity to provide an ‘‘alternative’’ to be included in the second scoping document.

The time line in which that alternative was to be produced was extremely short,

especially when you consider that THE FEDERAL GOVERNMENT chose to undertake this assessment at the busiest time of year for livestock producers. We were

able to secure a one-week extension through our livestock association and their attorney and presented our alternative. That alternative was printed in the scoping

material published, but with the notation that it was not considered viable and

would not be studied.

THE FEDERAL GOVERNMENT has since decided that they would further study

our alternative, but like the misinformation on the water, the seed has been planted

and the trap has been laid for those who would do away with us.

On June 9, 1998, THE FEDERAL GOVERNMENT mailed out over 600 copies of

their scoping alternatives to ‘‘interested parties.’’ Their aim was to make sure that

all alternatives and issues relative to the 33 allotments were listed and they gener-
59

ously provided a 20-day comment period. When asked for a 30 extension on the comment period for all permittees by New Mexico Lt. Governor Walter Bradley, THE

FEDERAL GOVERNMENT granted an extension . . . but only for the Lt. Governor.

THE FEDERAL GOVERNMENT still plans to issue 23 draft EAs to cover the 33

allotments on August 1, 1998. Lt. Governor Bradley has until July 30 to comment.

I guess that tell us all how much THE FEDERAL GOVERNMENT values the participation of state government.

THE FEDERAL GOVERNMENT says it cannot grant an extension to all permittees because their analysis must be completed by the end of the fiscal year. If the

money for the analysis must be spent within the fiscal year, why did they wait until

March to begin the process?

Adding insult to injury, the Forest Guardians chose to hold their annual gathering on our allotment in mid June, after we have suffered through five years of

drought. That Federal land is multiple use land and the Forest Guardians have

every right to use it. However, now I am told that our allotments have some 60 comments, while the other 31 have only 15 combined.

As I said, the draft EAs are to be mailed out by August 1, with a 30-day comment

period for recipients to ‘‘vote’’ on which alternative should be utilized. Brent has no

illusions about which alternative will win the vote on our allotments. It will be alternative A, which allows for no grazing, but keeps all watering facilities and improvements in place. It does not, however, make clear who will pay to keep those

improvements in place. Brent and Stephanie will certainly not have the money to

do. In the end, it will be the American taxpayer, your constituents, who will pay

the bill, just as they are paying the bills for these citizen suits.

Between 1993 and 1998, some 75 suits have been filed in Arizona, primarily by

radical environmental groups. Every time THE FEDERAL GOVERNMENT settles

one of these suits, they turn around and pay the radicals for their court costs and

attorney fees. There have been hundreds of thousands of dollars paid out by THE

FEDERAL GOVERNMENT. During the Forest Guardians meeting in Kingston on

our operation, their attorney quipped that he did not charge his clients fees, THE

FEDERAL GOVERNMENT paid his bills. And we call these citizen suits?

If THE FEDERAL GOVERNMENT doesn’t pay, so-called charity groups do. According to an article from the Albuquerque Journal in August 1997, which I would

like to request be made part of the record, the Philadelphia based PEW Foundation

pumped nearly $700,000 into the Southwest for litigation between 1995 and 1997.

And, they are just one of the contributors. So much for citizen law suits.

An additional problem with the citizen suit provisions is the way THE GOVERNMENT has reacted to them. As part of their latest litigation, the Forest Guardians

filed for a preliminary injunction to remove livestock immediately from more than

100 allotments in New Mexico and Arizona. At the request of the FEDERAL GOVERNMENT and after great expense and effort, the New Mexico Cattle Growers Association and the Arizona Cattle Growers Association gained intervener status in

the case to protect the interests of the livestock producers. Although THE FEDERAL GOVERNMENT assured our organizations that they were in a good position

to defend the case, immediately prior to the hearing they negotiated a stipulated

agreement with the radicals that would have been extremely harmful to the livestock industry.

Because we as interveners would not sign off on the stipulation, the presiding

Federal district judge denied the stipulation. So, the Forest Guardians and THE

FEDERAL GOVERNMENT simply and literally went into a back room and came

out with a settlement agreement. This agreement is a piece of paper with no more

value than a contract between two parties.

THE FEDERAL GOVERNMENT, however, has told the press and the public and

tried to tell permittees that they have a court order to destroy our lives, our families, our culture and our country.

Based on the ESA, the agreement itself appears to be illegal. It covers potential

critical habitat, potentially listed species, suitable habitat and suitable but unoccupied habitat. The ESA provides no authority for any of these. The potential critical

habitat is especially frightening. Potential critical habitat is defined as anywhere a

species might want to live in the next ten years. Suppose some bird or fish or bug

decides it wants to live where your chair is sitting. Will you just step aside and find

a new place for your office and for our government to hold hearings?

The Forest Guardians are feeling pretty sly right now. At their Kingston meeting

on our allotment, they announced that they would be flying over the fences THE

FEDERAL GOVERNMENT agreed to build, taking photographs. They will then

bring their volunteer troops in on foot to document that fences are down. Because

THE FEDERAL GOVERNMENT will be violating their settlement agreement, the

Forest Guardians will then file a new suit based on that violation and demand that
60

cattle be removed, not because of the ESA, but because of a violation of a settlement

agreement. Given the way THE FEDERAL GOVERNMENT has handled the situation to this point, there is little doubt in my mind what happens next.

There was no way THE FEDERAL GOVERNMENT could hold up their end of

that settlement agreement even in the beginning. There are so many elk in the Gila

Forest that there is no way to keep them from tearing down fences. If anyone were

interested in the truth, the truth is that the elk are doing tremendous resource

damage. Even when all the cows are gone, there will be no improvement in the environment because of the elk.

Additionally, the Forest Guardians made statements at their meeting about how

‘‘boy scouts’’ might cut fences or leave gates open. Any guesses as to the size and

age of these ‘‘boy scouts?’’

At the conclusion of the Forest Guardians three-day meeting in Kingston, gates

were left open in every one of our eight pastures allowing livestock to roam over

more than 100 square miles. Coincidence?

I have been told that folks are walking our pastures that are being rested trying

to find proof that cattle are in them out of the rotation prescribed by our grazing

permit, even though our allotments are not the subject of current litigation. It

doesn’t take a rocket scientist to figure who will be among the targets of the next

suits.

If I sound bitter, it is because I am. I have told you a very personal story, but

my story is no different than that of my fellow cattle producers throughout the

West. THE FEDERAL GOVERNMENT tells us that they are not trying to put us

out of business. I would ask, if you decided to cut their wages by 78 percent, would

they still think they were employed? Would they be able to pay their bills and feed

their families?

I taught my son not to be afraid of anything. But I am afraid and now I can’t

seem to make him afraid of what THE FEDERAL GOVERNMENT, our government,

the government is doing to us.

Nobody among us wants to harm the environment. Who could be against protecting animals? We have cared for the land and its creatures so that we could pass

it on to future generations.

We are hear to beg for your help to stop what is happening to us.

STATEMENT OF ROBERT WIYGUL, MANAGING ATTORNEY, EARTH JUSTICE LEGAL

DEFENSE FUND, ROCKY MOUNTAIN OFFICE

Good afternoon. My name is Robert Wiygul, and I am the managing attorney of

the Earth Justice Legal Defense Fund’s Rocky Mountain Office, which is located in

Denver, Colorado. I am also the attorney for Forest Guardians in the case in the

Arizona district court which is the subject of this hearing. I appreciate the opportunity to be here and to give you my perspective on this case, and the settlement

agreement which resulted from it.

I’d like to address three basic points about this lawsuit and the settlement agreement. The first is that removal of cattle from river and stream corridors was and

is absolutely necessary to address the damage that livestock grazing causes to endangered species and water quality on Forest Service lands in Arizona and New

Mexico. Had the Forest Service not agreed to the measures in the settlement agreement, there is little question that the Court would have issued an injunction with

much harsher terms. The second is that the settlement agreement was the bare

minimum necessary to, in the short term, protect stream corridors and the species

that depend on them for their survival. Over the longer term, there will need to be

additional reform of grazing practices to protect these watersheds. Third, I would

like to address the charges that the livestock industry was excluded from the negotiations over this settlement agreement. Those charges are simply not borne out by

the facts.

The Forest Guardians lawsuit was a necessary response to what amounted

to a crisis situation on Forest Service lands in the Desert Southwest.

Stream corridors constitute the richest, most diverse and productive ecosystems

in the southwestern United States, serving as home to hundreds of species, including migratory neotropical song birds and native fish. Although historically constituting just 1 percent of land in the Southwest, the habitats within these corridors—

referred to as riparian areas—support an estimated 85 percent of desert Southwest

species at some point in their development. During the course of the last century,

however, 95 percent of these riparian systems have been degraded and destroyed.
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Unmanaged domestic livestock grazing has been one of the single most important

factors in the precipitous decline of these ecosystems.

For more than 20 years, the Forest Service has regarded riparian health as a top

management priority on the 21 million acres it manages in Arizona and New Mexico; for more than 15 years, the Forest Service has had standards and guidelines

in effect to restore these degraded ecosystems; yet today, the vast majority of riparian areas on Forest Service lands remain in unsatisfactory condition. During that

same period, the United States Fish and Wildlife Service (‘‘FWS’’) has listed one riparian-dependent species after another as threatened or endangered. To date, more

than 20 southwestern species that are dependent on healthy riparian and aquatic

ecosystems have been listed as either threatened or endangered, or are proposed for

listing.

The Forest Guardians lawsuit, Forest Guardians v. U.S. Forest Service, et al (Civ.

No. 97-2562 PHX-SMM), focused on three species that are dependent on healthy

streams and riparian areas: the southwestern willow flycatcher, the spikedace, and

the loach minnow. There is no serious question that uncontrolled cattle grazing has

decimated the riparian habitat critical to these species. The scientific literature and

documentation from the U.S. Fish and Wildlife Service and the Forest Service all

establish that grazing has altered the hydrology and vegetation of these species’

habitat so severely as to drive them to the brink of extinction.

The only means of recovering these areas to a fully functioning status is to remove cattle from them altogether.

Despite this fact, the Forest Service’s actions to remove cattle from this critical

riparian habitat has been painfully slow and halting. In one case, for example, our

research showed that fences which were to have been constructed as much as three

years ago to protect riparian areas from cattle had simply never been built. In other

cases, cattle were placed in riparian pastures after other pastures had been exhausted. In still other cases, cattle were present in areas from which the Forest

Service claimed that they had been excluded. This failure to protect critical riparian

habitat violated not just the Endangered Species Act, but also the National Forest

Management Act. Just as significantly, the Forest Service had very clearly failed to

comply with the consultation requirements of the Endangered Species Act with respect to grazing on these allotments.

The settlement agreement was the bare minimum necessary to, in the short

term, protect stream corridors and the species that depend on them for

their survival.

The fact of the matter is that the Forest Service had simply not moved to carry

out its obligations under the Endangered Species Act, and as a result it stood a good

chance of losing in court. If the agency lost, the result would very likely have been

a broad injunction against any continued grazing pending compliance with the Endangered Species Act.

The settlement agreement that was ultimately reached in the case was a compromise, as are all settlement agreements. In essence it required the Forest Service

to remove cattle from a number of stream corridors, perform habitat reviews in

other stream corridors, and insure that trespass cattle were promptly removed from

places they weren’t supposed to be.

These measures are not by any means overly protective. In fact, they constitute

a bare minimum of safeguards for these endangered fish and birds. For the short

term, they will help protect critical riparian habitat from further degradation. For

the longer term, other measures will clearly be necessary. In the arid climate of the

desert southwest, cattle grazing leads to erosion, changes in plant communities, and

environmental degradation. Over time cattle numbers on Forest Service lands must

be drastically reduced, and in some cases grazing must be eliminated altogether.

This is not a pleasant prospect for the Forest Service, it is not a pleasant prospect

for the ranching community, and although you may not credit it, it is not a pleasant

prospect for me. But it is an inescapable fact that decades of abuse is catching up

with the public lands of the desert southwest, and the law and the public demand

that those abuses be reversed.

The livestock industry was invited to join in the negotiations over this settlement

agreement.

Finally, let me address the charge that the settlement agreement in the Forest

Guardians suit was cooked up in secret, and somehow lacks legitimacy. The fact of

the matter is that the New Mexico and Arizona Cattle Grower’s Associations intervened in the lawsuit, and were invited to join in settlement discussions. They even

participated in early settlement talks. Apparently on the advice of their attorneys,

they pulled out of those talks. Had they chosen to participate, they would have been
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at the table. They did not, and their complaints of exclusion cannot lie comfortably

in their mouths now.

In addition, it is worth noting that the Cattle Growers’ Associations requested

that the Federal district court block implementation of the settlement agreement,

and that court reused the request in very strong terms. The Cattle Growers could

have appealed that decision or sought further relief, but chose not to. If they believed this settlement agreement was secret or illegal, their recourse was through

the courts. The fact that they chose not to take that recourse says volumes.

In sum, the Forest Guardians lawsuit was a necessary response to years of abuse

of the riparian areas of the southwestern National Forests. The settlement agreement that was reached in that case provides a bare minimum of protection for these

areas, and its terms were negotiated in broad daylight.

Thank you for inviting me to testify here today. I welcome your questions.

STATEMENT OF DR. ROBERT D. OHMART, ARIZONA STATE UNIVERSITY

Good afternoon ladies and gentlemen of the House Resources Committee. Thank

you, Mr. Chairman, for inviting me to testify today.

Even though I am and have been employed by Arizona State University for the

past 28 years, my comments today are my own based on my education and experiences. They in no way represent those of the University.

I would like to begin with a brief background to give you some feel for the basis

and foundation of my testimony. I was born in eastern New Mexico where my folks

worked at dry-land farming, raising some cattle, and running some sheep. A large

portion of my relatives pursued these vocations in the general area as well. Dry land

farming was erratic at best and if the boll weevils didn’t get the cotton the hail

storms usually did. Ranching was similar and my father moved to Carlsbad, New

Mexico to work in the potash mines shortly before I entered school.

I received all of my primary and secondary education in Carlsbad. After graduation in 1955 I attended New Mexico State University thinking I was mature enough

for a college education. Unfortunately that was not the case.

I left college and worked for two years in the oil fields of west Texas. I worked

on drilling rigs and ultimately became a pulling unit operator where we replaced

joints of tubing or pumps on oil wells that needed refurbishing. After two years I

returned to New Mexico State University where I began working on a BS degree

in Wildlife Management. To broaden my training and to insure employment after

graduation I took many courses in range grasses, range management and animal

sciences. I graduated in 1961 and elected to continue my education at NMSU but

now in the Biology Department. I completed my Master’s Degree in 1963. Though

my interests were primarily in wildlife (birds) I continued taking botanical courses

such as range botany and plant ecology.

I give you this background because most people on the street think college professors live and exist in ivory towers and have little or no connection with the real

world. In many of my colleagues that is true, but my roots come from poor dirt

farmers with little more than a fourth or fifth grade education. I have watched

many a sunrise on my knees with a 12-foot cotton sack strapped to my shoulder

or standing on a pulling unit starting out of the hole with an 8,000-foot string of

2-inch pipe. I feel very connected to the real world and part of my heritage is a few

cows, goats and chickens in my back yard in Chandler, Arizona.

After my Master’s degree I attended the University of Arizona, worked at the University of California in Davis, and eventually accepted a faculty position to develop

a wildlife program at Arizona State University in 1970.

Since then, my research has taken me over much of Arizona, California, New

Mexico and west and south Texas. I have worked with virtually every Federal and

state agency in the Southwest.

In 1993 the Governor of Arizona appointed about 35 scientists throughout Arizona

and from all state and private entities to examine and rank ecosystems in Arizona

at a level of risk. EPA provided the funding and we on the Technical Committee

worked two years examining and ranking the risk level for all ecosystems in Arizona.

We found that ecosystems at greatest risk in Arizona are wetlands, springs and

streams. Domestic livestock grazing is one of the top three human stressors

to these ecosystems. (The other two are water management (dams, channelization, riprapping, etc.), and groundwater pumping.)

About ten to twelve years ago I became interested in small streams and their behavior since virtually all of the large streams in the Southwest have been so intensively managed for water yield. As I began to examine small streams it became in-
63

stantly obvious the impacts that grazing livestock where having on these stream

systems. I immediately began reading and studying the scientific literature to determine what other workers had observed and documented relative to livestock use and

their impacts.

I then began to look for bench mark areas or streams that had no or very limited

domestic livestock use. Not to my surprise there are few streams that had escaped

heavy livestock use over the past 125 years that cattle have used the arid west. I

began walking streams seeing what others had reported in the scientific literature

and noting other types of ecological degradation as the result of heavy livestock use.

Bench mark streams and streams where cattle have been excluded in the recent

past helped me to reconstruct what the appearance of healthy streams should be.

The photographs I show you today provide vivid evidence of the damage uncontrolled livestock have on riparian habitat. These are two photos on the San Pedro

River taken from the Herford Bridge. The one with the cattle in it was taken by

a AZ Game and Fish employee in June 1985 (Pat O’Brien). Cattle were removed

from the river on 1 January 1987. So the second photo was taken 8.5 years after

cattle exclusion from the same spot and in the same month (June 1995). You can

see that recovering a riparian stream is possible, but it takes time and it takes will.

Why worry about riparian habitats? What is their importance to society?

If southwestern civilization is to sustain itself it must have clean, reliable sources

of water. Our riparian systems are vital to our survival in the southwest. When

healthy they help dissipate floods, clean our water supplies and provide the greatest

water yield through time. Healthy riparian areas also provide the highest water

quality.

These systems also are vital to the lion’s share of wildlife in the Southwest. For

example, 75 to 85 percent of the wildlife in the Southwest are obligate users of riparian systems. By that I mean that this wildlife would no longer exist in the

Southwest if these habitats were obliterated. Another 15 to 20 percent of the wildlife use these habitats at some time or another throughout the annual cycle. So

about 95 percent of the wildlife in the Southwest use the riparian habitats.

How much riparian habitat is there?

The most accurate data come from Arizona, but I strongly suspect that is very

representative for the Southwest. There are 73 million acres in Arizona. There are

5,000 miles of perennial rivers in the State. There are 260,000 acres of floodplains

along the above rivers or this acreage is capable of supporting riparian floodplain

habitat. Thus, less than 1 percent of Arizona is riparian habitat yet it is

vital to more than three quarters of the total wildlife in the State. There

have been a few streams excluded from livestock but their numbers are insignificant

compared to the whole.

What condition of health are these habitats in?

In 1991 EPA reported that riparian habitats were in the poorest ecological health

ever in the history of this country. In general, their ecological health has only worsened over the past 7 years.

What is the most important ecological component for wildlife in riparian systems?

The cottonwood/willow habitat is by far the richest wildlife habitat in the coterminous United States. This forest community is considered the rarest forest type by

the Nature Conservancy.

With the above background information in front of us I think I can now easily

answer Chairman Young’s question as to ‘‘Why has the USFS imposed new regulations on grazing on Federal lands in the area.’’

The USFS has not imposed any new regulations on Federal grazing permitters,

it is only obeying the laws passed by Congress and beginning to better protect natural resources on public lands.

I went to Tucson with the intent of testifying as an expert witness for the Conservation Groups and on my arrival I was informed that the USFS had stipulated

to all the concerns of the Conservation Groups. Being a personal and professional

colleague with many of the USFS personnel over the past 30 years, I asked many

of them why they had conceded to these groups. The answer was a simple ‘‘All of

these demands are in our planning and management proposals so the intent of the

Conservation Groups was no different than what our intentions were. This action

today only expedited our management intentions.’’

Mr. Chairman, we have in the past borrowed and destroyed abundant riparian

resources from future generations. Unless we start making management changes

today there will not be any riparian resources for future generations except for salt

cedar. Wildlife will mainly be starlings, English sparrows, and pigeons. As a young-
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ster I was taught that when you borrowed something to ALWAYS return it in better

condition than when you borrowed it—sharpen it or whatever.

We are not doing that, Mr. Chairman, and if we are concerned about the condition

of this earth for our future generations these types of management changes are imperative!

STATEMENT OF JEFF MENGES, SECOND VICE PRESIDENT, ARIZONA CATTLE GROWERS’

ASSOCIATION

Introduction

Mr. Chairman, my name is Jeff Menges. I am a fourth generation rancher from

southeastern Arizona and I am currently serving as second vice-president of the Arizona Cattle Growers’ Association (ACGA).

I want to thank Chairman Young and the House Committee on Resources for

holding this oversight hearing and for inviting me to testify on behalf of over 2,000

Arizona Cattle Growers regarding the use of the citizen suit provision of the Endangered Species Act to terminate grazing in the southwestern part of the United

States. 16 U.S.C. 1540(g). I will utilize my time today by recounting for the Committee my own personal experiences with lawsuits filed by the Southwest Center for

Biological Diversity and the Forest Guardians on BLM allotments that my family

has been utilizing for nearly twenty years.

This process is fundamentally wrong and has left ranchers disillusioned and has

increased distrust of the agency personnel we must work with on our allotments.

In the case I just mentioned the cattlegrowers were brought into the process by the

agency and then we sold out by the same agency that enlisted our assistance. The

Arizona Cattlemen’s associations had expert witnesses prepared to testify as to the

benefits that can result from grazing in riparian areas, that it is not always necessary to exclude grazing to ensure the continued existence of the species in question, and that excluding grazing could be potentially harmful to some of the endangered species. Unfortunately, these witnesses were never heard because the agreement that was reached between the government and the environmental groups

quickly brought an end to the ‘‘hearing.’’

Utilizing Federal Lands is Crucial to the Ranching Industry in Arizona

First, I want to point out that the ability to continue utilizing Federal lands is

crucial to the future of the ranching industry, particularly in Arizona. In our state,

more than the Federal Government owns 73 percent of the land and the Indian

tribes and these Federal lands are intermingled with state and privately owned

lands. This intermingled land ownership pattern makes nearly every viable ranching operation dependent to some degree on the ability to utilize the Federal lands

for grazing. This attack by the environmentalist groups on the practice of Federal

lands grazing is having the effect of destroying the entire ranching industry in Arizona, an industry that currently provides beef for approximately seven million people. This ongoing and overzealous use of the citizen suit provision of the ESA is forcing hard working ranch families into removing their cattle from the very allotments

they have spent their lives stewarding—allotments which are in better condition

today than at any other time in history.

For most ranchers, it is a lifetime goal to pass the family ranch to the next generation as our parents and grandparents have done for the past one hundred years.

Good stewardship of the lands from which we make our living and which makes this

possible is in the best interest of every ranching family. Nevertheless, there are a

number of interest groups that make no secret of the fact that they intend to remove all cattle from the Federal lands in the southwestern part of the United States

and they have found a method of utilizing the ESA to do just that.

Environmentalist Groups are Systematically Removing Cattle from the

Southwest

The following is a typical scenario of how the groups proceed under the ESA:

First, the group determines the area in which it wants to see the cattle removed.

Next, the group finds a species that occupies or could potentially occupy the area

and petitions to get the species listed as ‘‘endangered’’ pursuant to the ESA. Then,

the group files suit against the action agency, either the Forest Service (FS) or the

Bureau of Land Management (BLM) under the citizen’s suit provision of the ESA

which provides: ‘‘. . . any citizen may request to enjoin any person ‘alleged’ to be in

violation of the Act . . .’’ 16 U.S.C. 1540 (g)(1)(A). Typically, the group bases its suit

on the allegation that the land management agency has not entered Section 7 Consultation as required for protection of the species and asserting that grazing con-
65

stitutes a ‘‘taking’’ pursuant to Section 9 of the ESA. Next, the group will ask the

court to grant a preliminary injunction to prohibit any grazing activity until a decision on the merits can be made. The next step is for the environmentalist group

and the land management agency to settle, out-of-court, whereby the FS or the BLM

agrees to remove the cattle from the area and the environmentalist group agrees

to drop the suit. More often than not, the environmentalists will obtain an award

for costs and fees based upon a section within the ESA that provides authority for

the ruling court to grant such awards whenever it sees fit. Id. at 1540 (g)(3)(B)(4).

The group uses the fee award to finance filing its next lawsuit. This process repeated over and over again across the entire southwestern part of this country is

effectively eliminating the entire ranching industry. In my own case, with more

than 90 percent of my operation existing on Federal lands, assuming this trend continues, my only option is to take the remaining private land I have left, subdivide

and sell it for real estate development.

The Land Management Agencies Fail to Defend Their Own Federal Lands

Grazing Programs

Recently, I was called as an expert witness in the U.S. District Court in Tucson,

Arizona where the Southwest Center for Biological Diversity and the Forest Guardians were seeking a preliminary injunction precluding continuation of grazing on

over one hundred Forest Service allotments in Arizona and New Mexico. The Forest

Service requested that the Arizona Cattle Growers intervene in the process. Believing the Forest Service intended on defending its grazing program, and realizing that

the injunction had the potential of putting our ranchers out of business, the ACG

had no alternative but to request intervener status. Therefore, the ACGA intervened

in the lawsuit at a cost to us and the New Mexico Cattle Growers of approximately

$100,000 only to have the FS settle with the environmentalists ‘‘behind closed

doors’’ resulting in removal of cattle from all riparian areas. In this case, the

cattlegrowers were neither privy to nor included in the negotiation process yet, the

U.S. Department of Justice attorneys attempted to get the court to sign the negotiated settlement agreement. The court refused to sign the order but nevertheless,

the FS is currently implementing the terms of the settlement agreement by modifying annual operating plans on Forest Service allotments. Something is drastically

wrong with this process whereby standing to sue is as easy as alleging a violation

of the ESA and where settlement agreements can be arranged without involving the

affected parties in the process. A grazing permit represents a contract between the

individual rancher and the government. I know of no other arena, which provides

a mechanism whereby an outside interest, is allowed to alter or terminate a contract

without consulting the affected parties. It is fundamentally wrong for the land management agencies to negotiate altering our grazing permits without including us in

the process.

Litigation is Driving Public Lands Management Decisions

A second suit that I want to address with the Committee was filed by the Southwest Center for Biological Diversity was the result of a Biological Opinion (BO) released by the U.S. Fish and Wildlife Service regarding the BLM allotments utilized

by my operation and affecting approximately 1.6 million acres and 288 BLM allotments. In this case, the environmentalists alleged that the BLM failed to consult

with the Fish and Wildlife Service as required under the ESA. However, the released findings stated in the Biological Opinion established that cattle grazing was

not adverse to any listed or potentially listed species and that cattle grazing would

not adversely affect any potential habitat, thereby precluding the Consultation requirement. Nevertheless, the environmentalists alleged that grazing in these riparian areas constitutes a ‘‘taking’’ of the pygmy owl and the razorback sucker both

listed as endangered pursuant to the ESA. As a result, the BLM entered into a similar process I described above resulting in an agreement that forces me to terminate

grazing on approximately nine miles of riparian area within my allotments despite

the fact that there is no indication that either of these species occupy these particular riparian areas, nor have these areas been designated as critical habitat. Furthermore, the BLM admits that the riparian areas within our allotments exhibit an

upward trend.

In fact, I entered into a cooperative agreement with the BLM allowing me to implement a winter grazing program on these allotments due to the fact that the riparian area was in such good condition. The availability of this annual spring forage

is invaluable to my ranching operation. I have been grazing this particular area

under the agreement since 1990 and as recent as 1995 this was the only segment

within the 29 miles of riparian area monitored by the BLM that was determined

to meet the criteria for ‘‘proper functioning condition’’ (PFC).
66

I have provided pictures, which illustrate the positive vegetative response in this

riparian area. Clearly, these pictures show and the BLM cannot deny that we have

effectively accomplished every environmental goal established by the BLM at the

onset of the grazing program. Furthermore, in 1995, I received a ‘‘grazing excellence’’ award from the Society for Range Management for our efforts. Yet, despite

the success of my efforts, earlier this year I received a Full Force and Effect Decision by the BLM ordering me to remove all livestock from these riparian areas for

the next ten years (and presumably permanently). I filed appealing the decision, but

pursuant to regulations governing such appeals, the order to remove my cattle remains in full force and effect pending decision on the appeal. 43 C.F.R. 4.477. Furthermore, the burden of proving that our livestock should remain on the allotment

according to the terms of our cooperative agreement lies with the rancher. Assuming

I have the resources to defend an agreement on one allotment, it’s unlikely that I

can continue to defend myself when the next challenge arises. It becomes obvious

that the administrative appeals afford little relief to the average operator.

Ranchers are disillusioned by the Appearance of Impropriety Surrounding

these Settlement Agreements

This process of filing lawsuits only to romance the agency into backroom agreements with the environmental community has left ranchers disillusioned and created increased level of distrust of the agency personnel we have worked with for

several years. Time and time again, the cattlegrowers have been invited to join in

the litigation process by the agency only to be sold out by the same folks that asked

for our help. We are astounded by the apparent willingness of the land management

agencies, an arm of our Federal Government, to succumb to the demands of these

opposition groups. To illustrate my point, I want to provide you with an example

of how blatant this can be.

On the morning following the hearing in Tucson in which I was called as an expert witness and which I referred to earlier in my testimony, I was sitting in a room

at the hotel where all parties to the litigation were gathered for a continental breakfast. A local news program announced that ‘‘one of the largest cattle removals in

the history of the public lands would be occurring in New Mexico and Arizona.’’ A

large group consisting of Forest Service employees, Southwest Center for Biological

Diversity and Forest Guardian members and their attorneys cheered and clapped

the announcement of the previous day’s settlement agreement between the groups.

It was apparent to me on whose team those Federal officials were playing.

The Forest Service and BLM remain under a legal mandate to maintain grazing

programs, but it is apparent by the actions of the agency that there are many of

these Federal land managers that give only lip service to such programs and would

much prefer to see livestock eliminated from the Southwest. What has become even

more painfully obvious to the ranching community is that more and more the land

management agencies we have worked with in the past are aligning themselves

ideologically with the extreme environmentalist groups that make no secret of the

fact that it is their goal to remove all livestock from the entire southwest. Even

more disheartening for us is the fact that without the ESA citizen suit provision and

provisions for reimbursement of litigation costs much of this opposition activity

would not be possible. Many of us have our life savings invested in our Federal

lands grazing permits and now we are forced to defend them against parties who

invest little to none of their own resources.

Conclusion

The process is broken. Litigation is currently driving land management decision

making and the ESA citizen suit provision is fueling the ongoing litigation efforts.

The ESA is being used to zone for owls, suckers and a number of other species that

absolutely do not exist and may not even historically existed in the area. Federal

lands ranchers need relief from misuse of this process—these types of frivolous activities is not what Congress intended. The citizen suit provision of the ESA and

the appeal process must be overhauled with consideration of the foregoing misuses

in mind.

Until recently, I had been a strong supporter of the BLM and its grazing and it

distresses me to be in confrontation with BLM officials that I considered as friends

but I have an obligation to my family to stand for what is right and to protect my

family’s future. I always believed that by caring for the land like my parents, grandparents and great grandparents did I was preserving an opportunity for my own
67

children to engage in this ranching lifestyle should they choose. But I am now convinced that if this ‘‘runaway train,’’ the ESA is not stopped, my children will not

have that opportunity to earn their living by ranching.

Thank you for this opportunity and, if you have any questions, I will glad to answer them.
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69

STATEMENT OF RENNE LOHOEFENER, ASSISTANT REGIONAL DIRECTOR, ECOLOGICAL

SERVICES, U.S. FISH AND WILDLIFE SERVICE, REGION 2

Mr. Chairman, thank you for the opportunity to discuss the Endangered Species

Act, specifically the citizen suit provision of the ESA as it relates to grazing in the

Southwest. I am accompanied by Tim Vollman, Regional Solicitor, Department of

the Interior, for our Southwest Region.

In spite of the abundance of litigation that the U.S. Fish and Wildlife Service

(FWS) has faced in recent years, particularly in the southwestern portion of the

U.S., the FWS remains a strong proponent of the citizen suit provision of the ESA.

This provision plays an important role in ensuring that non-Federal entities—including states, counties, industry associations, environmental organizations and private citizens—have a say in the protection of species and their habitat, and provides

a mechanism whereby citizens can ask the courts to examine whether agencies are

appropriately implementing the ESA. However, it is unlikely that the citizen suit

provision invites litigation against the Federal Government, as these suits could

usually be brought under other laws were this provision absent in the ESA. In fact,

the ESA citizen suit provision actually assists the government to avoid some lawsuits, since it requires plaintiffs to notify the Federal agency 60 days prior to bringing a lawsuit. The Notice of Intent to Sue (NOI) provision has enabled the government to avoid some lawsuits by responding during the 60-day period to the claims

made in the NOI and to work with potential plaintiffs in other instances to address

issues raised in NOIs.

The situation in the Southwest is extremely challenging, not as a result of the

citizens suit provision of the ESA, but due to the need to manage natural resources

for which there are many competing demands in an area with extremely diverse and

fragile ecosystems, large expanses of public lands, fast growing metropolitan centers, and scarce water resources. This situation has been further complicated by

past problems in communication among Federal agencies and with the public, and

by the extremely heavy and ever-increasing workload of the FWS and other agencies

in this region.

The complexity of the social, ecological and economic situation in the Southwest

is not going to change. However, Federal agencies are already changing how they

communicate with each other and the public, and how they work together to ensure

compliance with the ESA. We are also working closely with other agencies to

streamline the consultation process and to make it as efficient and effective as possible. As for our ever increasing workload, the President’s FY 1999 budget requested

an increase for FWS in Endangered Species funding of $2 million to support the additional staffing needed to ensure timely and efficient consultations, listing decisions, and recovery efforts in the Southwest.

The FWS has made and will continue to make every effort to ensure that our decisions are scientifically based, that our priorities are driven by the needs of species,

and that neither are driven by litigation. The ESA requires the FWS to make listing

decisions solely on the basis of the best scientific and commercial data available. It

cannot be, and is not, influenced by pending or threatened litigation. At the center

of much of the litigation surrounding the listing program in the Southwest has been

the FWS’s listing priority system. The FWS is not challenged as much on decisions

of whether to list as on decisions of when to list. A large backlog of listing actions

resulting from the listing moratorium and funding rescissions several years ago required the FWS to prioritize its listing actions based on critical need, biology and

the relative conservation benefit provided by each type of listing activity. To assist

in assigning relative priorities to listing actions, each year since the listing moratorium the FWS has issued a Listing Priority Guidance (61 FR 64475) to prioritize

types of listing actions such as emergency listings, final listing decisions, candidate

status, petition findings, delistings and critical habitat designations. This

prioritization has necessarily resulted in many cases where the FWS postponed listing certain species in order to pursue listing other species in greater need of ESA

protection. The FWS has stood behind its listing priority system, which has withstood several court challenges, because it is based on sound science and conservation

need. Operating without this priority system or failing to defend this system would

likely result in more, not fewer, lawsuits.

To ensure that litigation does not consume our resources and to be more responsive to other Federal agencies and the public, the FWS has instituted broad reforms

in the last few years. These reforms have, in many respects, revolutionized species

conservation in the United States and made implementation of the ESA more effective and efficient while providing greater flexibility and certainty to businesses and

private landowners. The FWS has begun streamlining the consultation and permitting processes of the Endangered Species Program; strengthening our historical
70

commitment to basing species conservation decisions on sound science through an

improved peer review process; increasing the use of Candidate Conservation Agreements to remove threats and prevent species from needing to be listed as endangered or threatened; providing regulatory assurances to private landowners through

Habitat Conservation Plans (HCPs) with the ‘‘No Surprises’’ rule and the use of new

tools such as ‘‘Safe Harbor’’ agreements; improving monitoring programs under sections 7 and 10 of the ESA; and increasing Federal agency, Tribal, State, and private

sector involvement in species conservation.

Specifically in the Southwest, the FWS and other Federal natural resource-related

agencies have made a commitment to collaborate with each other, the public and

Tribal, State and local governments under the umbrella of the Southwest Strategy.

We are working diligently to improve communications with organizations that have

typically brought litigation against us. By maintaining good communications with

all interested parties, including open dialogue early in the decision-making processes, we hope to decrease the amount of future litigation and to use the energy

and resources of all parties that is currently applied to litigation to work creatively

and proactively to enhance natural resources in the region. For example, towards

the end of bringing all agencies into compliance on consultation requirements under

the ESA, a Southwest Strategy Work Group has just completed streamlining processes for the Federal agencies to address the near-term section 7 workload. In addition, public involvement is being undertaken, and agencies involved in the Southwest Strategy have recently been in contact with and sought feedback from various

State and Tribal government and non-governmental entities. A tribal summit was

also held in New Mexico to engage tribal members and governments in dialogue

about natural resources and one is being planned in Arizona also as part of the

Southwest Strategy.

It is in part due to the groundwork laid by the Southwest Strategy that a possible

injunction on cattle grazing was avoided on approximately 160 Forest Service allotments in Arizona and New Mexico. The Forest Service and FWS had committed to

finding a new way of doing business in the Southwest and a Grazing Work Group

was under formation as part of the Federal aspect of the Southwest Strategy, enabling us to come together quickly to consult on allotments identified in litigation by

the Forest Guardians and the Southwest Center for Biological Diversity. This interagency group was not only able to expedite consultation on approximately 160 allotments that were the subject of the suit, but they were able to review and are near

completion of consultation for 749 other allotments. Of those 749 allotments, only

21 required formal consultation because they fell into the category of ‘‘Likely to Adversely Affect’’ a listed species.

In this consultation, no effects were found on listed species for more than 600 of

the 749 allotments, and a determination of unlikely to adversely affect listed species

was made for another approximately 110 allotments. The Forest Services’s commitment to protecting species and ecosystems is evident in riparian areas, where grazing was not likely to adversely affect any southwestern willow flycatchers or their

habitat. Furthermore, management changes called for on these and future allotments would be required of the Forest Service under section 7 consultation irrespective of this or any other litigation.

As previously stated, in order to ensure that the FWS remains responsive to the

needs of other Federal agencies and the public, and of the species, and to address

our expanding workload, the Administration has requested a $2 million increase in

our FY 1999 budget for the Southwest. This increase in funding will allow us to

proactively work with partners to reduce the need to list species, continue to address the listing backlog, respond to hundreds of consultations for other Federal

agencies, and work to recover species so that they do not need the protections of

the ESA.

The Service and numerous other Federal agencies have put a great deal of effort

into getting the Southwest Strategy underway and are hoping to use it as an example of how we can do business in a more efficient and effective manner. We want

to ensure that those individuals that make their living off the land can continue to

do so, while also ensuring that native species and their habitat are protected on

Federal lands, that our natural heritage is conserved, and that future listings are

avoided. I am happy to report that we are currently headed in this direction. I hope

I can report back to you in the near future that our efforts have been successful,

and litigation in the Southwest has been reduced.

Mr. Chairman, thank you again for the opportunity to testify on this issue. I

would be happy to answer any questions.
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STATEMENT OF ELEANOR S. TOWNS, REGIONAL FORESTER, SOUTHWESTERN REGION,

USDA FOREST SERVICE

Mr. Chairman and Members of the Committee:

I am pleased to appear before the Committee today to discuss the implementation

of the Endangered Species Act on grazing programs of the southwestern Region. I

am accompanied by Dave Stewart, Acting Director of Range Management, Southwestern Region.

Today, I will be giving a brief overview of grazing on National Forest System

lands in general and the Southwestern Region in particular.

Overview

The Forest Service has been managing rangelands for nearly 100 years, and has

a long history of partnership with livestock producers who rely upon National Forest

System lands. In fact, grazing on Federal lands was one of the earliest resource

issues to be debated in the United States. When the debate raged over whether livestock grazing would be banned from the Forest Reserves, Gifford Pinchot, the first

Chief of the Forest Service, argued that grazing be controlled rather than prohibited.

Then, as now, livestock grazing on National Forest System lands was based on

scientific range research, first begun in 1897 by the Department of Agriculture in

the Cascade Mountains of Oregon. The Forest Service began to implement the concept of a ‘‘special tract permit system’’ (as it was then known) and began to collect

fees in 1906 that were intended to pay for administration of the permit system. By

developing concepts such as carrying capacity and grazing systems involving deferral and rotation, these early range scientists and managers laid the foundation for

sustainable resource use.

Today livestock grazing on National Forests reserved from the public domain is

administered under a number of statutes, including the Granger-Thye Act of 1950,

the Multiple-Use Sustained-Yield Act of 1960, the Forest and Rangeland Renewable

Resources Planning Act of 1974, the Federal Land Policy and Management Act of

1976, and the Public Rangelands Improvement Act of 1978, among others. These

laws augment the authority in the Organic Act of 1897 which established the Forest

Service and directed the agency to regulate the use and occupancy of the forests to

preserve them from destruction.

The Range Management Program in the Southwestern Region

The Southwestern Region of the Forest Service, which consists of twelve National

Forests and more than twenty million acres of Federal land in Arizona, New Mexico,

Oklahoma, and Texas, is a large and diverse area with ecosystems such as the Colorado Plateau in Arizona and New Mexico, the Chihuahuan semi-desert in New Mexico, the Sonoran Desert in Arizona, and grasslands in Oklahoma and Texas.

The range management program in the Southwestern Region is extensive. There

are 1396 grazing allotments and 1658 permits which provide for about 2.1 million

head months of grazing by cattle, horses, sheep, and goats. This represents about

18-percent of the permits and 16 percent of the head months of grazing on National

Forest System lands nationwide.

Grazing in the Southwestern Region and elsewhere on National Forest System

lands is authorized by a grazing permit, which is typically issued for a term of ten

years. The permit specifies the number of cattle authorized to graze, the allotments

where the grazing is to occur, and the season or time of use. The authorization regarding numbers and season of use do not obligate or guarantee that those numbers

or seasons will be met each year. Through annual operating plans, grazing seasons

and numbers may be adjusted for resource protection.

The permit also sets forth the terms and conditions which a permittee must comply with when grazing livestock on National Forest System lands. For almost a century, courts have held that grazing on Federal lands is a privilege, not a right, and

statutes governing this activity expressly state that issuance of a grazing permit

does not limit or restrict any right, title, or interest of the United States in any federally owned land or resources.

Decisions to issue grazing permits must be made in compliance with applicable

laws. In addition to the laws previously noted, grazing on National Forest System

lands is also subject to the requirements of the Endangered Species Act, the National Environmental Policy Act (NEPA), the National Historic Preservation Act, the

Wilderness Act, the Clean Water Act, and other environmental laws. Decisions to

issue grazing permits must also be consistent with the applicable direction contained in the land and resource management plan (forest plan) for the National Forest on which the grazing occurs.
72

Evaluating the legal requirements applicable to grazing and the resource condition of lands where grazing is proposed are crucial to meeting our responsibilities

as resource managers. The evaluation typically occurs as part of the environmental

analysis required pursuant to NEPA and is required when a grazing permit expires

at the end of its ten year term or when a permit is waived to the Forest Service

as part of the sale of a ranching operation.

In 1995, the Southwestern Region was faced with the expiration of 501 permits—

covering 36 percent of its 1396 grazing allotments—by the end of 1996. Under Section 504 of the FY 1995 Supplemental Appropriations Bill (Public Law 104-19), Congress directed the Forest Service to develop a schedule for the orderly completion

of the environmental analysis required by NEPA. In the meantime and pending the

completion of the requisite analysis, Congress directed the Forest Service to issue

new grazing permits on the same terms and conditions as the expiring grazing permits if the only reason not to issue a new permit was that the NEPA analysis had

not been completed. Once the NEPA analysis had been completed, the Forest Service could make the adjustments to the permit terms and conditions warranted by

the environmental analysis.

The Southwestern Region developed a schedule to complete the NEPA analysis by

2001 on the 501 allotments as well as all allotments where there were apparent resource concerns associated with endangered species and the protection of clean

water and riparian areas. The Region has made tremendous progress in completing

the allotment analysis since the enactment of the FY 1995 Supplemental Appropriations Bill. Through 1997, decisions authorizing grazing pursuant to the NEPA analysis have been made on 294 grazing allotments. We project that we will complete

decisions for another 287 allotments in 1998.

Changes in allotment management may be needed over time as new information

becomes available; such has been the case with respect to species listed as threatened or endangered under the Endangered Species Act.

In May 1996, the Forest Service initiated programmatic consultation on all the

forest plans in the Southwestern Region regarding effects to federally listed threatened and endangered species. In June 1997, during this consultation, the Region

issued special management requirements for seven of the listed species (loach minnow, spinedace, spikedace, razorback sucker, pygmy owl, southwest willow

flycatcher, and Sonoran chub). The Region determined the management requirements were necessary to avoid jeopardizing these species or destroying critical habitat; these requirements were considered in the development of the Biological Opinion for the forest plans issued by Fish and Wildlife Service in December 1997. The

1998 annual operating plans which are appended to and incorporated as a term and

condition of grazing permits throughout the Southwestern Region reflect the June

1997, special management requirements.

In late 1997, the Forest Guardians and Southwest Center for Biological Diversity,

filed separate lawsuits against the Forest Service, alleging the agency had violated

the Endangered Species Act by allowing grazing to continue before site-specific consultation with the Fish and Wildlife Service required under the Endangered Species

Act had been completed. Approximately 160 individual grazing allotments on forests

throughout the Southwestern Region were specifically identified in the two lawsuits.

As part of an important agreement with our colleagues at the Fish and Wildlife

Service, the Forest Service initiated site-specific consultation with the Fish and

Wildlife Service in February 1998, for grazing on the 160 allotments listed in the

two lawsuits and approximately 600 more allotments with habitat for threatened or

endangered species. The consultation was scheduled to be completed by July 15,

1998. The completion date for consultation has been extended until next month to

give permitters more time to comment on the draft biological opinion. This consultation is an unprecedented accomplishment and shows a high level of coordination and

cooperation between the Fish and Wildlife Service and the Forest Service. We think

this accomplishment is very important in that it provides for conservation and recovery of federally listed species while allowing some grazing (albeit at reduced levels) during the course of the consultation. The Forest Service has used its best efforts to involve ranchers whose permitted allotments were among the 160 named

in the lawsuits in the consultation process to the extent such involvement was authorized under the Endangered Species Act.

On March 3, 1998, Forest Guardians filed a motion for a preliminary injunction

to halt grazing on most of the named allotments in their lawsuit pending completion

of the site-specific consultation. Subsequently, the Southwest Center for Biological

Diversity also filed a motion for a similar preliminary injunction. In order to avoid

injunctions of livestock grazing, the Department of Justice negotiated stipulations

with both Forest Guardians and the Southwest Center for Biological Diversity to ensure that protection of habitat for threatened and endangered species would con-
73

tinue at least until the completion of the consultation on the allotments. The stipulations formalize management practices that were already being implemented. As

part of the stipulations, the Forest Guardians and the Southwest Center for Biological Diversity agreed to withdraw their respective motions for preliminary injunction,

which, if granted, could have forced the removal of livestock from the allotments entirely. We were aware of concerns expressed by the livestock industry which had intervened in these lawsuits and regret that they declined to sign the agreement. It

was our view, a view shared by the Department of Justice, that the benefits of entering into these stipulations—including avoiding a possible court ordered injunction—outweigh any disadvantage.

The consultation will soon be completed. We will continue to make progress on

NEPA analysis and new allotment management plans. All of this takes time. Resolving the grazing situation in the Southwest is a priority of this Administration;

in the President’s FY 1999 budget for Forest Service range management, the President asked for $65.6 million, an increase of $20 million over FY 1998. Part of the

requested increase would be allocated to the Southwestern Region to address livestock grazing. The President’s FY 1999 budget for the Forest Service includes $28.7

million for habitat management for threatened, endangered, and sensitive species,

an increase of $3 million over FY 1998. A portion of these funds would be allocated

to the Southwestern Region for use to restore habitat. Habitat restoration for these

species in combination with improvements in livestock management help make it

possible to recover endangered species so that they may be removed from the list

of threatened and endangered species.

We are committed to improving collaboration among the Federal agencies, states,

local governments, tribes, and the public. It is our hope that in the future, improved

collaboration among all parties will enhance sustainable resource management and

reduce the polarization and litigation that currently is occurring in the Region.

Conclusion

In summary, the Forest Service has been managing rangelands for nearly 100

years, and has a long history with livestock producers who rely upon National Forest System lands. The Southwestern Region manages a diverse and unique range

of ecosystems and has an extensive range program. The Region is moving quickly

to complete NEPA analysis, including consultation with the Fish and Wildlife Service for federally listed threatened and endangered species. Resolving the challenges

in the Southwestern Region is a high priority for the Administration. We will continue to work closely with the Fish and Wildlife Service and the public to meet these

challenges. Thank you for the opportunity to discuss these complex matters. This

concludes my prepared remarks. I would be happy to answer questions.
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1The USFWS also designated more than 300 river miles in Arizona as ‘‘critical habitat’’ for

the SWWF—none of which are in or near the Sierra Ancha or Poison Springs allotments of the

Tonto National Forest. 62 Fed. Reg. 39129 (July 22, 1997); 62 Fed. Reg. 44228 (August 20, 1997)

(correction).

STATEMENT OF SANDY AND MARVALENE SANBORN

The following is a brief synopsis of the tangle of agency actions which threaten

to put the Sanborn Land and Cattle Company (‘‘Sanborn LCC’’), an Arizona livestock company, out of business. In July 1997, the Forest Service told us that we

could no longer graze the Salt River/Roosevelt Lake Pasture which is included in

our allotment because grazing would harm the Southwest Willow Flycatcher

(‘‘SWWF’’). For the past three years, we had removed our livestock during the nesting season but had been allowed to return in late summer. By closing the pasture,

the Forest Service denied us access to our water rights in the Salt River. Due to

the Forest Service’s antiquated and unwritten policy of not allowing any range improvements until there is a final allotment management plan (‘‘AMP’’), we were prohibited from installing substitute water, and lost several head due to dehydration.

For the last year, we have been shut out of this critical pasture, even more critical

water—all due to a selectively applied Endangered Species Act (‘‘ESA’’) policy. The

District Ranger’s decision is on appeal but we as an elderly couple, simply could not

do the physical labor to ride the cattle to keep them out of the pasture (with no

fences to speak of) and deliver water as well.

We acquired the grazing permit when we purchased the ranch in 1994. We are

an older couple and our health has been directly harmed by the Forest Service’s action, their treatment of us, and the stress of trying to understand and comply with

regulatory decisions which make no sense. Sandy Sanborn underwent heart surgery

shortly after the Forest Service closed the Salt River pasture in the fall of 1997 and

postponed the surgery in order to try to deal with the Forest Service. The threat

of losing the huge investment represented by the ranch and the home is too much

to face alone and without help. We tell you the following experiences to show how

the Forest Service’s implementation of the ESA, is causing havoc, bears little or no

relation to the resources or the species to be protected and requires congressional

intervention.

The Grazing Permit

Our ranch, like many in the western livestock industry, is our primary asset. We

own, as Sanborn LCC, Grazing Permit Number 12-795 for the Sierra Ancha and the

Poison Springs allotments located on the Tonto National Forest, east of Phoenix.

Sanborn LCC is authorized to graze approximately 950 cattle on two grazing allotments. However, we never have grazed the full permit numbers due to the last several years of drought. In 1997, we brought off an additional 50 head and in 1998

agreed to reduce our numbers to 370 head plus yearlings.

The Poison Springs allotment was originally divided into 25 pastures, including

three located on the Salt River which the Forest Service now collectively calls the

‘‘Salt River/Roosevelt Lake’’ pasture. We were originally told that the pasture would

be closed to grazing during the spring (April 15 through July 31) in order to protect

the SWWF, now listed as an endangered species. We complied with this direction

and removed all of the livestock for the nesting season.

SWWF Habitat To Be Flooded

When we bought the ranch, we also understood that the Bureau of Reclamation

(‘‘BOR’’) proposed to expand water storage for the East Roosevelt Dam and Lake,

and it would inundate part of the Salt River pasture for a few months every few

years. The BOR proposal to increase water storage for the Phoenix metro-area is

also being litigated but has been upheld.

The partial allotment closure is contradicted by the fact that this pasture will be

regularly under water by the BOR’s expansion of the Roosevelt Dam to hold an additional 30,000 acre feet of water. This will increase the surface area of the lake

by more than 2,000 acres. While the pasture can be grazed when not under water,

Forest Service, BOR and USFWS all acknowledge that the area will lose the trees

which create the SWWF nesting habitat.

We believe that due to the planned flooding of this pasture, the land along the

Salt River was never designated critical habitat for the SWWF. Certainly, the

USFWS reviewed and approved the flooding of this area and the loss of the suitable

nesting habitat.1 The USFWS issued a non-jeopardy opinion approving the Bureau’s

projection of a total loss of this area as habitat for the SWWF.

The Forest Service Decision
133

In May 1997, the Regional office of the Forest Service issued Interim Direction

to protect the SWWF (‘‘SWWF Direction’’). This direction was prepared and implemented without any public comment or notice and without amending the respective

forest plans. In preparing this direction, the Forest Service relied on unpublished

and now unavailable biologists’ opinions, as opposed to hard scientific evidence, that

there is a direct link between cattle grazing and parasitism of SWWF nest sites by

cow birds. The same team ignored other scientific work calling into question the validity of this assumption. This direction called for the removal of all activities on

the National Forests, including livestock grazing, recreation, and other human activity.

In the summer of 1997, the Regional Forester directed the forests to immediately

implement the SWWF direction. The District Ranger of the Tonto National Forest,

based entirely on this direction, closed the Salt River pasture to all livestock grazing

for the foreseeable future on July 22, 1997. To our knowledge, the District Ranger

did not close any other pasture on the Tonto National Forest.

When we first bought the ranch and the National Forest grazing permit, the Forest Service was in the process of developing an AMP for an entire drainage on the

Tonto National Forest. Today, the Sanborn LLC AMP is still not final, even though

the Forest Service completed a final environmental assessment, which was challenged for not being an environmental impact statement (‘‘EIS’’), and then published

a final EIS in October, 1997.

Based on the alleged threat of livestock to the SWWF, in July, 1997, the Forest

Service closed pastures of the permit (renamed the Salt River pasture). This is very

same area which will be inundated by the expansion of the East Roosevelt Dam.

The irony is that even though USFWS declared the flooding of the SWWF habitat

to be okay, the Forest Service used the SWWF as the reason to deny us both our

grazing access and access to critical water rights by permanently closing the area

to all livestock grazing. This decision completely disrupted our operation because it

is located along the river and without access we cannot use the water we own.

The District Ranger’s decision to close the Salt River pasture occurred immediately after a ‘‘tiger team’’ from the regional office met with the District Ranger

and her staff to demand immediate action. The team members castigated and

threatened District Ranger staff members who objected to the direction due to lack

of due process and questions about the biology.

The Salt River pasture provides the primary source of water for the entire allotment and with the closure of the pasture, we have had to haul water on an almost

daily basis. The Forest Service has adhered to a policy of not approving additional

range improvements, such as water development or fences, until the AMP was done.

This process was started in 1992, long before we purchased the ranch, and is still

not complete. The Forest Service approved the AMPs for the other allotments included in the same final EIS in October of 1997. However, the Forest Service excluded our allotment shortly after their appeal of the decision to close the Salt River

pasture. Thus, the Forest Service has put us in a lose-lose situation, with no access

to water, during a drought, and no opportunity or ability to pursue other solutions.

Despite our cooperation and efforts to work with the Forest Service, the Forest

Service will not authorize any fences or water projects that will provide water to

pastures where there is no natural water. The Forest Service’s only reason is that

the AMP is not yet final but that the same time, the Forest Service itself has delayed issuing the Sanborn LCC AMP, although it approved the AMPs for all of the

other ranches covered by the EIS.

Not until this year, after entering into an agreement with the Forest Guardians,

did the Forest Service act to close other grazing allotments to grazing based on the

SWWF direction. Now, we understand that several hundred permitters are also

being forced to remove their livestock from riparian areas and related pastures, with

little or no notice. The direction is not applied to other uses, such as recreation use,

even though all uses were identified as harmful.

We requested a stay of the District Ranger’s decision, based upon the significant

economic harm and the serious questions about the alleged connection between

SWWF and livestock grazing. This request for a stay was denied, based on erroneous accusations leveled by the Supervisor’s office that we had grazed the full permit numbers and refused to remove livestock during the drought. A few months

later, the Forest Service decided to stay the entire appeal, an action for which they

had no legal authority, on the basis that the USFWS would revisit its biological

opinion. Sanborn LCC objected to this stalling tactic in a letter to the District Ranger and never received the courtesy of a response. The USFWS did revisit the biological opinion but did not change the prescription for the SWWF, which is closure of

the pasture for the nesting season.
134

The Forest Service claimed that it has delayed its decision on the Sanborn’s AMP

due to new information concerning the SWWF. This new information is not the U

Bar Ranch data, which the Forest Service has discounted as not applicable. The

1998 revised USFWS biological opinion only requires removal of livestock grazing

during the nesting season, not year round. Thus, the USFWS biological opinion does

not support the Forest Service’s decision to close this pasture to grazing permanently.

The Forest Service’s actions cannot be supported on procedural grounds or scientific grounds. The SWWF direction was adopted secretly, despite express requirements in the law and regulations that such direction have public notice and comment. By comparison when the Forest Service tried to adopt direction regarding the

red cockaded woodpecker or the northern goshawk, the Sierra Club prevailed in appeal on the basis that any such direction had to be adopted as part of a public process.

Assumption of Harm to the SWWF Contradicted

The Forest Service has continued to discount the results of a five year study on

the U Bar Ranch, which shows that grazing does not lead to greater parasitism and

that SWWF is not harmed by livestock grazing. This year Forest Service biologists

are reconsidering the presumed link between loss of nest sites and livestock grazing.

Nevertheless, due to a combination of hostility to grazing program within the Forest

Service and the threat of ESA litigation, Forest Service officials continue to remove

livestock grazing on the basis of the ESA.

The latest scientific evidence shows that the presumed connection between the decline of the SWWF and livestock grazing cannot be supported. The work done on

the U Bar Ranch is the only study seeking to measure the relationship between

grazing and the SWWF. It is debunking most of the assumptions now being employed by the Forest Service. Despite this credible new information, the Forest Service is ignoring the results of the U Bar study, on the assumption that the habitat

is different, the Forest Service assumes that all cattle are harming the SWWF,

without addressing the specific facts of the particular allotment.

We pointed out that the allotment has dense stands of tamarisk where the SWWF

nests and roosts and the cattle do not stand in the nest habitat, because they cannot

trail through the trees and brush. The Forest Service’s claim that the removal of

livestock grazing is due to the USFWS direction and possible jeopardy opinion

makes no sense, if USFWS has already approved inundation of this habitat. Moreover, it makes no sense to deny us the right to graze livestock when this area is

not critical habitat and the Forest Service has failed to consider reliable scientific

evidence that livestock grazing is not the cause of cow birds taking over SWWF

nests.

The Sanborn LCC situation was only exacerbated by the fact that the Forest Service states that it relied on reports from its biologists but those reports are not included as part of the appeal record, and the Supervisor declined to provide a copy

of the report, although originally he agreed to do so.

For the last year, we have suffered serious losses as a direct result of the Forest

Service’s mechanical application of the SWWF Direction—which itself was (a) admittedly based on incomplete information, (b) adopted in secret, without the procedural

protections guaranteed by the National Forest Management Act, Federal Land Policy and Management Act, and the National Environmental Policy Act; and (c) apparently so weak and biased that the Forest Service will not release the actual data

allegedly supporting the closure of the pasture.

We have completed the administrative appeal process and are awaiting a decision.

However, given the Forest Service’s denial of the stay request a year ago and its

recent refusal to even disclose the biological report which was the basis for the decision to close the pasture, we are not optimistic. The Forest Service treatment of

Sanborn LCC reflects an institutional hostility to livestock grazing and a willingness

to sacrifice this industry.

It is long past time for someone to bring common sense and fairness to the management of the National Forests. Many other livestock grazing permitters, like

Sanborn LCC, face ever-growing limits on their grazing permits which are adopted

without any sound basis in science, fact, or common sense. Recent litigation and the

mere threat of litigation appears to persuade the Forest Service to simply turn on

the livestock industry and become a willing partner in the environmental groups’

efforts to end all livestock grazing on the National Forests.

We urge this Committee to begin drafting legislation to prevent the Forest Service

from disrupting the legal rights of grazing permitters, without following fair and

open procedures in the development of ESA management guidelines, and evaluation

of which guidelines can be supported by science as opposed to emotion and political
135

posturing. Unless Congress acts, the Forest Service will continue to sacrifice the

multiple-use interests to the demands of a few who oppose ‘‘impure’’ uses of the Federal lands. Only seven years ago, the attacks were on the logging industry, which

has largely disappeared from the Arizona National Forests. This year is livestock

grazing. In the next few years, recreation use will be the target. We also urge the

Congress to revise the Endangered Species Act so that it cannot be used as a tool

by agencies to ignore the legal rights of long-standing permitters and land uses in

favor of politically motivated litigants.

STATEMENT OF BRIAN AND DEB JENNINGS, LAZY H CROSS RANCH, C/O IRVING POWER

PLANT, CAMP VERDE, ARIZONA

July 28, 1998

Dear Representative Don Young,

We would like to submit this letter as written testimony for record on the ERA

hearing on 7/13/98.

My wife and I have owned the Skeleton Ridge Allotment grazing rights on the

Tonto National Forest for 23 years. We’ve operated on a rest rotation management

plan for 18 years. Included with that is 18 years of trend monitoring, as well, that

show our range conditions to be in an upward to stable trend in all aspects.

In 1994 we decided to sell our ranch. In March of 1995, we asked the Forest Service to update our NEPA plan to cover the latest endangered species requirements,

which would be required either to transfer or reissue our permit. It took two and

a half years for Forest Service and Fish & Wildlife Service to go through the motions and come up with an opinion. The ‘‘on the ground’’ forest service people

couldn’t see or find any adverse effects from our current grazing plan or numbers.

However, the Fish & Wildlife Service came back with an opinion of ‘‘may effect but

no adverse effect’’ with real strict usage guidelines. They had NO sound science to

back up their decision, which will greatly restrict the current grazing plan.

In the last three and a half years, due to lawsuits and deal making between the

Forest Service and numerous environmental groups to prevent lawsuits, new stricter use guidelines, deals to completely remove livestock grazing from designated occupied, unoccupied or potential habitat and all the unrest among the agencies, we

have lost 5 or 6 (at least) potential buyers. When they talk to the Forest Service,

they aren’t given any answers as to whether or not grazing will be allowed and if

so, whether it’ll be at current numbers or reduced numbers. This push for proposed

changes in Forest Service guidelines will force us or anybody who buys this ranch

to likely lose a third or more of the grazing capacity and/or build at least 30 miles

of fence which will have to be constantly maintained, rain or shine, in very rough

country. This will cost more than the current value of the permit. We sure can’t

blame anyone for not wanting to invest in all these unanswered questions.

Case II

My family and I also own Red Creek Allotment grazing rights adjacent to Skeleton Ridge. This ranch has been on the same type management plan, same monitoring system showing the same results and has the same endangered species. We

also asked for the updated NEPA on this ranch in March of ’95. As of to date we

have no answer on this ranch either. One of the reasons we don’t is the agency people are unable to come to the same decisions. Some say it should be a ‘‘may effect

with no adverse effects’’ and the others just seem to want the livestock removed altogether from the Verde River. The only difference between Skeleton Ridge Allotment and Red Creek Allotment is a barbwire fence! Needless to say, we’ve lost numerous potential buyers on this ranch, also.

In 1985 the forest supervisor, the regional director of Fish & Wildlife Service and

the director of AZ Game & Fish signed an MOU to plant the Gila Top Minnow in

some 60 sites in AZ in an experimently nonessential capacity with the biological

opinion of ‘‘may effect but no change in activity.’’ A few years after they were planted the Forest Service began to fence livestock away from springs and other sources

of minnow habitat. This year after 13 years of saying nothing, we are told that we

have to fence off the remaining unfenced springs and/or streams before we can use

the surrounding pastures. It has been seven months since we were informed of the

decision to exclude livestock from these sites. To date none of the paper work is

done to start any construction of alternative, dependable water (which we were

promised) or fencing, and we are due to move into these pastures in a couple of

weeks at the latest. This is going to cause us to have to stress (by overuse) the pastures we are currently in or remove numbers to avoid a take. This because no one

is responsible for their decisions or their lack of actions.
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The AZ Game & Fish surveyed these sites and found NO Gila Top Minnows on

Red Creek Allotment since 1987. However Fish & Wildlife and Forest Service will

not give on their decision until more studies are done. Consequently, we’re stuck

in between with no answers. Very possibly, we will lose every thing in the end.

Case III

My in-laws, Herschel and Ramona Downs, own the KP & Raspberry Allotments

grazing rights in the Apache-Sitgreaves National Forest. They have been on this

place for 45 years. The current management plan has been used for 13 years. Along

with this they have also monitored, showing an upward trend for the same period

of time. In 1995, their 10-year permit came up for renewal. The Forest Service proceeded to go through the motions of the NEPA process. But, with the big push to

get so many permits renewed before they expired, the Forest Service came up with

a computer model, from somewhere unknown to us, to set carrying capacity by. This

model eliminated so much area as unsuitable, estimated carrying capacity so low,

and restricted vast areas for occupied, unoccupied, and potential habitat for several

endangered species, that it showed an 84 percent reduction in livestock numbers.

All this was done from the office with no ground truthing what so ever. The trend

monitoring, which had been done with Forest Service range staff, U of A range specialists, and the permittee was totally ignored. This reduction in numbers is from

225 head to 46 head. The EIS said there would be no adverse economic impact. But

in reality this has destroyed Herschel and Ramona’s life, financially and emotionally. Herschel is 85 years old and can’t start over, has no income and nothing to

sell except their home which was for retirement. They have nothing to pass on to

their daughters and granddaughter. That is two families that have lost everything

(their daughter and son-in-law ran the ranch for them). A way of life and a way

to earn a living.

They are going to sell their cattle and turn the permit back to the Forest Service

because 46 head only earns approximately $10-$12 thousand annual income, at best.

Two families can’t run a ranch and live on that amount. One can’t!

If they take non-use to save a chance of getting it back after the court cases are

settled, they still have to maintain all improvements (this entails some 200 miles

of fence). Thus they would be liable for any unwanted livestock straying onto their

permit and all restricted areas within. We understand harm to an endangered species to be a felony if prosecuted. Can you see an 85 year old man in prison because

an elk tore the fence down or some jerk left a gate open and a cow got through to

where she wasn’t supposed to be?!

If the Fish & Wildlife Service, Forest Service, and environmental groups aren’t

using the ESA to justify removing livestock, they should be willing to remove ALL

threats to listed species, such as recreation, reintroduced predators or over populations of certain species. However, this is not happening.

As you can see from these three cases, the ESA needs changed if we are to maintain life as or near to what it is now, economically and socially.

We feel that many changes are called for in the ESA. Here are three good examples:

1—All decisions concerning listings should be based on sound science.

2—Removal of one species should be followed by removal of any and all other

species that can and will do the same harm or damage.

3—Introduction of a species should only be done when it won’t endanger the

survival of another species.

We appreciate your efforts to help. Thank you for giving us this opportunity to

testify.

Sincerely,

Brian & Deb Jennings

STATEMENT OF HON. GEORGE MILLER, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF CALIFORNIA

Mr. Chairman, here we go again. Same hearing, different month, as we hear one

more time about how the west is being persecuted under the Endangered Species

Act. This time, it’s the environmental community using the citizen suit provisions

of the ESA to kick cattle ranchers off Federal lands with the cooperation of the Federal agencies. Moreover, the environmental groups are getting rich doing it.

The facts do not seem to support those claims, however. The fact is, the Endangered Species Act requires all Federal agencies to consult with the Fish and Wildlife

Service to insure that any action carried out by an agency, including the issuance

of grazing permits, is not likely to jeopardize the continued existence of any endan-
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gered or threatened species. Moreover, the Act imposes a substantive duty on the

agencies to insure that any action authorized by the agency is not likely to reduce

appreciably the likelihood of both the survival and recovery of the species.

The fact is, cattle grazing, be it on public or private lands, can be extremely damaging to riparian habitat and, in many cases, the habitat that is needed for several

endangered and threatened species to survive. In the case we will hear about today,

the Forest Service has admitted that it had not conducted consultations on the permits allowing this grazing, and that this was a violation of the law. This suit was

settled with an agreement that embodied the activities that the Forest Service had

already planned to undertake to ensure compliance with the ESA. Moreover, as the

Justice Department will point out, the situation was resolved without the burden

of court ordered shut downs that have been common in the past. Instead, grazing

is continuing to occur on the vast majority of Forest Service allotments.

The fact is, if there are more lawsuits being filed in the west to enforce the ESA,

it is not because the burden of the ESA has increased, or is being unfairly imposed

on the west and not the east. It because species diversity and richness in the west

and south is far greater than it is in the north and the east. Its because the population growth in the south and west is booming—all of the nations fastest growing

regions are found in the south and west—placing more demands on scarce resources. Its because the demand for the use of Federal lands continues to increase,

as private lands continue to be sold to developers to accommodate this growth. And

its because local governments, developers, and the users of taxpayer-owned lands

are constantly applying pressure on the Federal agencies to refrain from implementing the ESA. In fact, an ESA bill in the Senate is stalled because the Republican leadership is insisting that all language obligating Federal agencies to help recover species be deleted from the bill . . . . a demand which will, without a doubt, encourage more lawsuits.

The fact is, as the growth in the Southwest continues to place more demands on

public lands in this incredibly biologically diverse region, ESA related issues will increase as well. The rate at which the Forest Service and the Fish and Wildlife Service will be able to conduct consultations, make listing decisions, and carry out their

responsibilities under the law will not not increase, however, without an increase

in financial resources to address this growing workload. In turn, the environmentalists will continue to win their lawsuits. Not because the courts are more sympathetic, but because the letter of the law is clear and the courts are finding that it

is not being applied, in large part due to this lack of resources.

Ironically, this week we will be asked to vote on an Interior appropriations bill

that does nothing to improve that financial situation for the Service and provide

more expedient consultations for ranchers and others who wish to use public lands.

According to an OMB letter, ‘‘Under-funding the ESA as the Interior Appropriations

bill does, will harm our ability to get species back on the road to recovery and off

the ESA list. It will also result in an increase in litigation due to an inability to

complete consultations, listings, and de-listings in a timely manner.’’

If we want to do something to really solve ESA conflicts, we need to stop pointing

to the Act as the cause of all of our problems and instead provide the agencies with

the resources they need to do their job in a timely fashion. The majority of Americans support the protection of endangered species, and this law is not going away.

Lets stop trotting out the same old rhetoric to make the situation worse and work

together on getting the facts so we can do what the public elected us to do; reauthorize this law in a way that makes it better for both the species and the people.

STATEMENT OF LEON FAGER, USFS RETIRED, RIO RANCHO, NEW MEXICO

Dear Congressman Miller:

Please enter the following letter into the record of the upcoming hearing in July

sponsored by Rep. Joe Skeen of New Mexico concerning the Southwestern Region

of the Forest Service agreements to remove livestock from riparian areas.

I recently retired, November 30, 1997, after 31 years in the Forest Service. My

Forest Service career included assignments as a wildlife biologist on the Apache

Sitgreaves and Black Hills National Forests, Regional Fisheries Biologist in Region

2, and the Southwestern Regional Threatened, Endangered and Sensitive Species

Program Manager from 1992 until I retired. Over the past 31 years, I have seen

many changes in the Forest Service concerning our customers and the resources

that we were charged to manage. My concerns and frustrations with the Forest

Service in the Southwestern Region prompted me to take an early retirement and

leave an organization that I once loved. I would like to share with you some of my

experiences in R3 hopefully to give you some insight into why the Region is subject
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to an overwhelming amount of litigation, angry public and degrading natural resources.

The Southwestern Region, over the years, has nurtured a strong and politically

effective relationship with the timber and livestock industries. Budgets and targets,

of course, help drive Forest Service programs and entrenched the Regional belief

that timber and range were the two primary products from National Forest System

lands and in fact are the Regions’ core values. Other programs such as wildlife, fish,

rare species, botany and water are considered secondary products and are generally

seen as constraints on the timber and range programs. The publics that support

wildlife, fish and rare plant programs are considered ‘‘the enemy’’ by many of those

in leadership positions, including the current Director of Wildlife, Fish and Rare

Plants.

The role of the biologists in the Region is support for the timber and range programs with little opportunity to design and implement projects specifically to recover listed and sensitive species. These species are not valued by the Region’s leadership and the only reason that so much energy and money is being spent on them

now is that the Region has been sued numerous times with more litigation on the

way, because of the Southwestern Region’s apparent failure to follow the law and

adequately protect rare species.

Furthermore, the Southwestern Region’s leadership see the lawsuits as an attack

on the programs they value. The Southwestern Region’s leadership and is spending

millions of taxpayer dollars to defend a livestock grazing (range) program that has

outlived its value and needs to be phased out as an inappropriate use of National

Forests in the 21st century.

The impact, past and present, of livestock grazing on Southwestern National Forests is the major reason that ecosystems are deteriorating, species are near extinction and watersheds are losing much of their ability to yield high quality and quantities of water. The damage done by livestock is especially apparent in the Region’s

riparian ecosystems. Riparian areas make up less than 1 percent of the National

Forests vegetation types yet support the majority of the Regions’ rare animal, fish

and plant species as well as providing water and recreation.

Biologists, over the years, have voiced their concerns over the impacts that livestock were having on riparian systems in the southwest. Their concerns have been

generally ignored by Regional line officers. This comes as no surprise because of the

history of most of the folks in leadership positions who grew up with the traditional

timber and range emphasis and they still maintain that same mentality today.

Many feel that the current leadership in the Region is incapable of making hard

decisions to meet the publics’ demand for water, wildlife, fish, rare plants and recreation in the upcoming century. There are three rapidly growing metropolitan areas

in the Region with most new residents relocating from the eastern U.S. The demands from resources from National Forests will be less timber and livestock production and greater demands for values other than livestock. As the publics in the

Southwest become increasingly aware of the values of fish, wildlife, rare species and

water they are demanding protection, recovery and restoration of rare species and

their habitats on National Forest lands.

These demands, often in the form of lawsuits, are seen by the Regions leadership

as meaningless complaints from a minority of ‘‘radical environs,’’ and after years of

ignoring their own biologists, state wildlife agencies and the public, we taxpayers

paying the cost to defend livestock grazing in the Region. The ineptness of the Regions leadership is also reflected in the reprisals to anyone perceived as challenging

traditional management of the agency’s core values.

The Regional Leadership Team is incapable of being responsible and accountable

for the conservation of the publics resources, including taxpayers dollars. They are

out of touch with the public and do not have passion for restoration of degraded ecosystems. They threatened employees who speak out in favor of resources and they

destroy their credibility. I know of many biologists and one deputy forest supervisor

who were forced to leave the Forest Service, transfer or resign because they spoke

out on resource and leadership issues in the Region. I know of a Fisheries Biologist

who is barred from working on some Forests and Regional Task Groups because he

criticized the Regions leadership in regards to riparian habitat management. I will

be glad to furnish their names if you would like. The problems in the Southwestern

Region relate back to the leadership.

I would like to offer some suggestions that I think would help make positive

changes in the Region:

(1) Remove those line officers that demonstrate lack of leadership or will to

manage the resources on National Forests as NATIONAL resources for the good

of the public.
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(2) Carefully replace inept line officers with leaders that are sensitive to ALL

the publics. This means meeting with ‘‘the enemy’’ environmental groups, finding common ground and working together to restore ecosystems, watersheds

and recover rare species.

(3) We can prevent much costly litigation if we had leaders that follow the

law and listen to the public.

(4) Think about doing away with the ‘‘line and staff’’ organization. Explore the

use of successful organizations from the private sector such as Saturn Motors.

The Kaibab NF is studying a new and more effective organization which they

discussed with the Gore Company, makers of Gore-Tex. They were told that no

matter what kind of organization they develop will not work as long as the Forest Service is out of touch with their markets and the public. In fact, the GoreTex folks said that if their company was out of touch with their customers as

the Forest Service is they’d be out of business. The decentralized line and staff

organization allow for many little fiefdoms bossed by many inept leaders.

(5) Acquire leaders who will regain our lost relationships with state wildlife

agencies and environmental groups. Get rid of those now in leadership positions

who fester hostility between the Forest Service and these groups.

(6) Develop active partnerships between the Forest Service and environmental groups such as the Southwest Center For Biological Diversity, Forest

Guardians, National Audubon Society, etc.

(7) Consider working with Congress to modify the Multiple-Use Act to that

of an Appropriate-Use Act. The Multiple-Use Act as applied in this Region

means ALL uses coming from the same acre. This is why we’re in trouble on

our riparian areas.

(8) Rather than just mitigating the losses of rare species from grazing and

timber management activities begin restoring habitats to recover and delist species. This is what our Forest Service Manual directs us to do.

(9) Require that biologists become certified using The Wildlife Society’s certification process. The Forest Service requires silviculturist to become certified before writing timber prescriptions, biologists need to be certified before authorized to sign Biological Assessments. This would reduce the opportunity for forests to have range conservationists and non-qualified biologists giving favorable

findings under Section 7 of the ESA to support range and timber.

(10) Develop a program area of ecosystem restoration. This should be the core

program area of the Forest Service and should drive all other programs.

(11) Since our public lands are indeed important to the public interest and

are highly valued as a source of water, recreation, wildlife and the protection

and recovery of rare genetic material needed by future generations, we should

consider the designation of a national commission similar to the Federal Reserve appointed by the administration who makes policy on public lands. This

commission would be independent of congressional and agency influence and

would set policy based upon the needs and desires of the public of the use of

public lands.

(12) The Congress and the Forest Service must come to grips with destructive

livestock grazing, not only on riparian areas but also on the adjacent upland

watersheds. The damage caused by livestock has resulted in untold costs both

to the health of these ecosystem but also to the economic health of communities

large and small which depend on water and recreation from National Forests

in the southwest. There are a number of alternatives that could be implemented

to lessen the impact of livestock on southwestern national forests: (A) Do not

restock livestock on allotments that have been vacated and the permit waived

back to the Forest Service—retire these allotments from grazing; (B) Design a

‘‘buyout program’’ possibly using grazing fees and Federal Land and Conservation Funds to use as a pool to compensate willing grazing permittees to waive

their permit back to the government and the allotment will be retired from

grazing; and (C) Designate an area of each National Forest where livestock

could be grazed under feedlot conditions. This would reduce the damage to a

small (less than one section), allow the Forest Service to graze cows, thereby

satisfying one of their core values and provide a place for permittees to put

their cows. The taxpayer is paying for this but the taxpayer is already footing

the bill for uneconomical grazing; this would at least reduce the cost.

(13) Focus on watershed health, not just riparian. Costly riparian fencing

should only be used as a short-term emergency measure.

(14) No more Ecosystem Management (EM) lip service. Prove commitment to

EM through on-the-ground action.

(15) Abandon management strategies that call for maximum resource production.
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(16) Make Land and Resource Management Plans realistic in terms of resource limitations and budgets. Integrate separate resource proposals i.e. wildlife, water, recreation. Disclose contingency plans for different budget levels.

(17) Learn to just say ‘‘no’’ to demands on National Forests which violate the

law or detract from sustainability.

(18) Set priorities when resource uses conflict, i.e. recreation vrs wildlife habitat.

(19) Monitor Forest Service actions and learn from mistakes.

(20) Reward Forest Service employees for entrepreneurship and risk taking.

A study of the Forest Service reward system found that the Service did not

highly value these attributes but rather rewarded employees for loyalty.

(21) Tie Forest Service performance standards to measures of ecosystem sustainability.

(22) Do not accept the Forest Service excuse that elk and not livestock are

causing damage to riparian areas. Where there is elk damage, it is very localized and due to the deteriorated condition of the surrounding uplands, due to

overgrazing by livestock which force elk into riparian areas.

(23) Require that a cost:benefit analysis be done on each allotment and disclose to the public. The taxpayers are getting ripped off, not only in environmental damage, but in our pocketbooks too! An analysis of 3 allotments on the

Apache-Sitgreaves show as total taxpayer cost for range improvements to be

$323,690 with an annual return from grazing permits of $2168. At this rate it,

without adding interest to the debt as a private borrower would normally have

to do, it would take 150 years to pay the taxpayer back for this debt.

(24) Don’t buy into the myth of ‘‘folk economics’’ that a reduction in livestock

grazing will cause small towns to disappear, quite the contrary is true. It is well

documented by Dr. Tom Powers, economist, University of Montana, that when

small towns rely only on one or two industries such as livestock and timber,

their long term sustainability is highly threatened. Many case studies reveal

that when the mills closed or livestock were eliminated as an industry, there

was a very short time period (18 days for Arizona and 25 for New Mexico) for

the growth of normal income to replace all jobs lost to Federal grazing. In fact

short term unemployment is considered healthy to the overall economic health

of communities because new and diversified industry take the place of the traditional ways of life. The Forest Service and politicians are actually doing a disservice to these small communities and only perpetuate this kind of ‘‘folk economics’’ to protect the status quo and generally a few ranchers who want their

way of life continued and subsidized by our tax dollars.

(25) Lastly and most importantly, decision-makers should use their power to

sway the Forest Service to use the best science in making decisions for the long

term sustainability of our public lands. We hold these lands in stewardship for

the long term needs of future generations. Public lands need to be restored for

the benefit of endangered species, wildlife, fish, recreation and clean water for

our economic future.

With an increasing population, the importance of our public lands for clean water,

recovery of rare species, wildlife, fish, recreation, wilderness and scenic beauty is

more important to our society everyday. Traditional extraction uses have to give

way to nonextractive uses if our public lands are to support sustainable ecosystems.

Old ways of thinking and managing these lands need to give way to using best

science in the gentle stewardship of these national treasures. I think the American

taxpayer is going to demand healthy ecosystems and a positive return on his dollar.

Both are now absent on our public lands
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