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DEFINING SPECIES CONSERVATION 

SUCCESS: TRIBAL, STATE AND 

LOCAL STEWARDSHIP VS. FEDERAL COURTROOM BATTLES AND

SUE-AND-SETTLE PRACTICES

OVERSIGHT HEARING

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS

FIRST SESSION

Tuesday, June 4, 2013

Serial No. 113–22

Printed for the use of the Committee on Natural Resources

(

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

or 

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

(II)

COMMITTEE ON NATURAL RESOURCES

DOC HASTINGS, WA, Chairman 

EDWARD J. MARKEY, MA, Ranking Democratic Member

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Mark E. Amodei, NV 

Markwayne Mullin, OK 

Chris Stewart, UT 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Vacancy 

Peter A. DeFazio, OR 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Steven A. Horsford, NV 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Jeffrey Duncan, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

(III)

CONTENTS 

Page

Hearing held on Tuesday, June 4, 2013 ................................................................ 1

Statement of Members: 

Bordallo, Hon. Madeleine Z., a Delegate in Congress from the Territory 

of Guam ......................................................................................................... 4

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

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

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

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

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

Commonwealth of Massachusetts, Prepared statement of ........................ 82

Statement of Witnesses: 

Brigham, Hon. N. Kathryn, Chairwoman, Columbia River Inter-Tribal 

Fish Commission ........................................................................................... 13

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

Report submitted for the record web address ......................................... 14

Ferrell, Steve, Wildlife and Endangered Species Policy Advisor, State 

of Wyoming, Cody, Wyoming ....................................................................... 33

Prepared statement of ............................................................................... 35

Jankovsky, Tom, Commissioner, Garfield County, Glenwood Springs, 

Colorado ......................................................................................................... 38

Prepared statement of ............................................................................... 39

Noss, Dr. Reed F., Professor of Biology, University of Central Florida, 

Orlando, Florida ............................................................................................ 20

Prepared statement of ............................................................................... 22

Parenteau, Patrick, Professor of Law, Vermont Law School, South 

Royalton, Vermont ........................................................................................ 27

Prepared statement of ............................................................................... 29

Powell, Tyler, Deputy Secretary of Environment, Office of the Secretary 

of Environment, State of Oklahoma ............................................................ 7

Prepared statement of ............................................................................... 9

(1)

OVERSIGHT HEARING ON ‘‘DEFINING SPECIES 

CONSERVATION SUCCESS: TRIBAL, STATE 

AND LOCAL STEWARDSHIP VS. FEDERAL 

COURTROOM BATTLES AND SUE-ANDSETTLE PRACTICES.’’

Tuesday, June 4, 2013

U.S. House of Representatives 

Committee on Natural Resources 

Washington, D.C. 

The Committee met, pursuant to notice, at 10 a.m., in room 

1324, Longworth House Office Building, Hon. Doc Hastings 

[Chairman of the Committee] presiding. 

Present: Representatives Hastings, Gohmert, Bishop, Lamborn, 

MClintock, Lummis, Duncan, Tipton, Labrador, Southerland, 

Flores, Mullin, Stewart, Daines, LaMalfa, DeFazio, Bordallo, Costa, 

Ca ́ rdenas, Horsford, Huffman, Shea-Porter, Lowenthal, and Garcia. 

The CHAIRMAN. The Committee will come to order, and the Chair 

announces the presence of a quorum, which, under our rules, is two 

Members, and we have exceeded that by two-and-a-half times, so 

I am very pleased with that. 

The Committee on Natural Resources is meeting today to hear 

testimony on an oversight hearing on ‘‘Defining Species Conservation Success: Tribal, State, and Local Stewardship vs. Federal 

Courtroom Battles and Sue-and-Settle Practices.’’

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

the Chairman and Ranking Member. However, I ask unanimous 

consent that if any Member wants to submit a statement for the 

record, that they submit that by the close of the day. 

[No response.] 

The CHAIRMAN. And without objection, so ordered. 

I will now recognize myself for 5 minutes for my opening statement. 

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

The CHAIRMAN. Today the Committee continues its important 

oversight of the Endangered Species Act, or ESA, a law that has 

not been reauthorized for 25 years. The intent of today’s hearing 

is to highlight specific examples of how species benefit from the 

work of State, local, and tribal entities, often in spite of, rather 

than because of, the ESA listings or habitat designations. 

During the last Congress, this Committee held several hearings 

that demonstrate how the ESA has been used as a tool for litigation, and how skillful lawyers are benefiting much more than species. Ironically, the same litigious groups that routinely criticize the 

Federal Government’s failure to meet ESA listing or critical habitat 

deadlines are the same groups that are quick to claim that the staVerDate 0ct 09 2002 09:43 Nov 26, 2013 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 Y:\02FISH~1\02MY16\81318.TXT MARK
2

tus quo ESA successful protects species by keeping the vast majority, which, by the way, is over 98 percent, from ever getting off the 

list. 

Closed-door settlements between the Interior Department and 

these litigious groups has set specific court-approved deadlines to 

force hundreds of species listings and habitat designations over the 

next few years. These settlement deadlines, and agencies’ reactions 

to the threats of litigation, are dominating Federal agencies’ use of 

resources and how they prioritize endangered species activities, 

often to the detriment of species. 

The map that is listed up there shows how the Interior settlements with the Center for Biological Diversity and the WildEarth 

Guardians impact nearly every State in the Union. That is the 

number of listings in the settlement. While Section A of ESA requires the Interior Department to cooperate with States and I 

quote ‘‘to the maximum extent practical,’’ including consultation before major ESA Federal actions affecting land or water within the 

States’ borders, Interior settlements were negotiated and signed 

without State and local input, and with little regard for ongoing 

conservation efforts. 

Fortunately, State, local, and tribal governments, and many private land owners not only care about species conservation, but they 

are doing it now, and in a manner that responsibly respects local 

economic activities, private property, and other uses. This is occurring despite the ever-growing litigation industry involving Federal 

implementation of ESA. 

In the Pacific Northwest, where I am from, hatchery programs 

run by the Columbia River Tribes have resulted in several notable 

successes, yielding record runs of ESA-listed salmon in several 

areas not seen in decades, and developing science that demonstrates well-run hatcheries can move salmon to a goal of 

delisting. Some Federal bureaucrats and litigious groups, however, 

have sought to block use of hatcheries, despite clear support for 

their use under ESA. 

Two other prominent species issues featured today, the Lesser 

Prairie Chicken, affecting largely private property in portions of 5 

States, and the Greater Sage Grouse, affecting important energy 

and grazing areas in part of 13 Western States, have become urgent issues now. But it is not because they face imminent extinction. Rather, the settlements now set deadlines that require the Interior Department to determine whether or not to list both candidate bird species soon. 

In both cases, State and local governments oppose a Federal listing. And yet, have taken comprehensive and proactive steps to develop data to prioritize species management, and plans to manage 

them at the State and local level, while at the same time protecting 

their local economies. 

So, I look forward to hearing more from our witnesses today 

about how successfully managing species is possible without Federal ESA listings, and that delisting is and should be a definition 

of success for ESA. 

In my view, successful State, local, and tribal species conservation efforts need to be encouraged, not threatened by lawsuits. Allowing the fate of species to be increasingly decided by Federal buVerDate 0ct 09 2002 09:43 Nov 26, 2013 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 Y:\02FISH~1\02MY16\81318.TXT MARK
3

reaucrats, lawyers, or Federal judges is not working, and it undercuts the true purpose, in my view, of the ESA. 

[The prepared statement of Mr. Hastings follows:]

Statement of The Honorable Doc Hastings, Chairman,

Committee on Natural Resources

Today the Committee continues its important oversight of the Endangered Species 

Act (ESA), a law that has not been reauthorized by Congress for 25 years. The intent of today’s hearing is to highlight specific examples of how species benefit from 

the work of state, local and tribal entities, often in spite of—rather than because 

of—Endangered Species Act listings or habitat designations. 

During the last Congress, this Committee held several hearings that demonstrated how the ESA has been used as a tool for litigation and how skillful lawyers are benefitting much more than species. Ironically, the same litigious groups 

that routinely criticize the federal government’s failure to meet ESA listing or critical habitat deadlines are the same groups that are quick to claim that the status 

quo ESA successfully protects species by keeping the vast majority (over 98 percent) 

from ever getting off the list. 

Closed-door settlements between the Interior Department and these litigious 

groups have set specific, court-approved deadlines to force hundreds of species listings and habitat designations over the next few years. These settlement deadlines, 

and agencies’ reactions to the threats of litigation, are dominating federal agencies’ 

use of resources and how they prioritize endangered species activities, often to the 

detriment of species. 

This map over here shows how the Interior settlements with CBD and WEG impact nearly every state in the union. 

While Section 6(a) of the ESA requires the Interior Department to cooperate with 

States ‘‘to the maximum extent practicable,’’ including consultation before major 

ESA federal actions affecting land or water within states’ borders, Interior’s settlements were negotiated and signed without state or local input, and with little regard for ongoing their conservation efforts. 

Fortunately, state, local, and tribal governments, and many private landowners 

not only care about species conservation, they’re doing it now, and in a manner that 

responsibly respects local economic activities, private property, and other uses. This 

is occurring despite the ever-growing litigation industry involving federal implementation of the Endangered Species Act. 

In the Pacific Northwest, hatchery programs run by Columbia River tribes have 

resulted in several notable successes—yielding record runs of ESA listed salmon in 

several areas not seen in decades, and developing science that demonstrates wellrun hatcheries can move salmon toward a goal of de-listing them. Some federal bureaucrats and litigious groups, however, have sought to block use of hatcheries, despite clear support for their use under ESA. 

Two other prominent species issues featured today—the Lesser Prairie Chicken, 

affecting largely private property on portions of five states, and the Greater Sage 

Grouse, affecting important energy and grazing areas in parts of thirteen western 

states—have become urgent issues now, not because they face imminent extinction. 

Rather, the settlements set deadlines that require the Interior Department to determine whether or not to list both ‘‘candidate’’ bird species soon. In both cases, 

states and local governments oppose a federal listing, yet have taken comprehensive 

and proactive steps to develop data to prioritize species management and plans to 

manage them at the state and local level while protecting their economies. 

I look forward to hearing more from our witnesses today about how successfully 

managing species is possible without federal ESA listings, and that de-listing is and 

should be the definition of ‘‘success’’ for ESA. 

In my view, successful state, local and tribal species conservation efforts need to 

be encouraged, not threatened by lawsuits. Allowing the fate of species to be increasingly decided by federal bureaucrats, lawyers or federal judges is not working 

and undercuts the true purpose of ESA. 

The CHAIRMAN. With that, I will yield back my time, and recognize the gentlelady from Guam. 

4

STATEMENT OF THE HON. MADELEINE Z. BORDALLO, A 

DELEGATE IN CONGRESS FROM THE TERRITORY OF GUAM 

Ms. BORDALLO. Thank you, Mr. Chairman. Last June this Committee held an oversight hearing on the Endangered Species Act 

entitled, ‘‘Taxpayer-Funded Litigation: Benefitting Lawyers and 

Harming Species, Jobs, and Schools.’’ A year later, the name has 

changed. But, unfortunately, the song remains the same. The Majority is trotting out the same tired arguments and roundly debunked myths questioning the legitimacy and the effectiveness of 

the law. 

The Endangered Species Act is one of the most important, popular, and effective conservation laws, not just in the history of the 

United States, but in the history of the world. Since it became law 

in 1973, U.S. GDP has increased nearly threefold, and per capita 

income has increased by half. Clearly, this law has not brought 

about the economic disaster that its detractors like to claim. 

The ESA’s near-perfect record of achieving species survival and 

its numerous species recovery successes, like the bald eagle, American alligator, and the gray whale, even in the face of continued 

population growth, land conversion, and pressure on ocean and 

coastal resources, show that the law has been a true success. 

The success of the Endangered Species Act comes from the cooperation of the Federal Government with the State and local governments, along with businesses and private land owners, the Fish 

and Wildlife Service, and the National Oceanic and Atmospheric 

Administration are working diligently with the States, localities, 

land owners, and other Federal agencies to find cooperative solutions to protecting and recovering threatened and endangered species, and prevent others from becoming imperiled. 

The fact that neither of the agencies tasked with implementing 

the ESA were invited to appear at the June 2012 hearing or in today’s rerun reflects the continuation of a troubling Republican 

strategy of fear-mongering, rather than a fair oversight effort. Republicans on this Committee know that Americans value biodiversity, conservation, and want economic development to be compatible with ecosystem health. They know that the ESA contains significant flexibility to allow projects to proceed after taking into account the national interest in the preservation of species and their 

habitats. And they know that the ESA has prevented the 

extinctions of 99 percent of species that have received protection 

under the law. 

Rather than admit this, the Majority is pursuing a radical agenda by casting doubt on a perfectly open and legitimate public participation process, ignoring the fact that citizen suits are brought 

on behalf of thousands of individual members of the plaintiff 

groups, and pointing to slow recovery rates as proof of failure, 

without providing the context of fundamentally altered and fragmented landscapes, insufficient conservation budgets, and global 

climate change. 

Moreover, the Majority ignores that Congress, under a Democratic and Republican leadership, have given agencies flexibility to 

avoid costly litigation. Case in point, we have empowered the Department of Defense to comply with ESA’s requirements and avoid 

litigation by entering into partnerships with private land owners. 

5

It would behoove us to look at this matter in a more constructive 

manner, rather than a visceral hate of a successful law. 

Maybe most troubling is the fiction the Majority and its allies are 

trying to create around the use of so-called sue-and-settle tactics 

under the ESA. It is said that imitation is the sincerest form of 

flattery. Now we have the Chamber of Commerce and the Republicans accusing the Obama Administration of making an end run 

around the regulatory process, just as environmental groups and 

Democrats accused the Bush Administration. 

I think we can reach bipartisan agreement that sue-and-settle is 

a catchy phrase. However, the fact that the Majority is using it as 

an excuse to shut down the right of people to protect the actions 

of their government is inappropriate, and runs counter to its own 

Tea Party principles. It also does nothing to promote species recovery, a goal to which Republicans are willing to spend time talking 

about, but are not willing to spend funds to actually achieve. 

I thank you, and I look forward to hearing from our witnesses. 

[The prepared statement of Ms. Bordallo follows:]

Statement of The Honorable Madeleine Z. Bordallo,

a Delegate in Congress from the Territory of Guam

Last June this Committee held an oversight hearing on the Endangered Species 

Act entitled: ‘‘Taxpayer-Funded Litigation: Benefitting Lawyers and Harming Species, Jobs and Schools.’’ A year later the name has changed, but unfortunately the 

song remains the same. The Majority is trotting out the same tired arguments and 

roundly debunked myths questioning the legitimacy and effectiveness of the law. 

The Endangered Species Act is one of the most important, popular, and effective 

conservation laws not just in the history of the United States, but in the history 

of the world. Since it became law in 1973, U.S. G–D–P has increased nearly threefold, and per capita income has increased by half. Clearly this law has not brought 

about the economic disaster that its detractors like to claim. The E–S–A’s near perfect record of achieving species survival, and its numerous species recovery successes like the bald eagle, American alligator, and gray whale—even in the face of 

continued population growth, land conversion, and pressure on ocean and coastal resources—show that the law has been a true success. 

The success of the Endangered Species Act comes from the cooperation of the federal government with state and local governments along with businesses and private landowners. The Fish and Wildlife Service and the National Oceanic and Atmospheric Administration are working diligently with states, localities, landowners, 

and other federal agencies to find cooperative solutions to protecting and recovering 

threatened and endangered species, and prevent others from becoming imperiled. 

The fact that neither of the agencies tasked with implementing the E–S–A were invited to appear at the June 2012 hearing or in today’s rerun reflects the continuation of a troubling Republican strategy of fear mongering rather than a fair oversight effort. 

Republicans on this Committee know that Americans value biodiversity conservation and want economic development to be compatible with ecosystem health. They 

know that the E–S–A contains significant flexibility to allow projects to proceed 

after taking into account the national interest in the preservation of species and 

their habitats. And they know that the E–S–A has prevented the extinction of 99 

percent of species that have received protection under the law. 

Rather than admit this, the Majority is pursuing a radical agenda by casting 

doubt on a perfectly open and legitimate public participation process; ignoring the 

fact that citizen suits are brought on behalf of thousands of individual members of 

the plaintiff groups; and pointing to slow recovery rates as proof of failure without 

providing the context of fundamentally altered and fragmented landscapes, insufficient conservation budgets, and global climate change. 

Moreover, the Majority ignores that Congress, under Democratic and Republican 

leadership, have given agencies flexibility to avoid costly litigation. Case in point, 

we have empowered the Department of Defense to comply with E–S–A’s requirements and avoid litigation by entering in partnerships with private landowners. It 

would behoove us to look at this matter in a more constructive manner rather than 

a visceral hate of a successful law. 

6

Maybe most troubling is the fiction the Majority and its allies are trying to create 

around the use of so-called ‘‘sue-and-settle’’ tactics under the E–S–A. It is said that 

imitation is the sincerest form of flattery. Now we have the Chamber of Commerce 

and Republicans accusing the Obama administration of making an end run around 

the regulatory process, just as environmental groups and Democrats accused the 

Bush administration. I think we can reach bipartisan agreement that ‘‘sue-and-settle’’ is a catchy phrase. However, the fact that the Majority is using it as an excuse 

to shut down the right of people to protest the actions of their government is inappropriate, and runs counter to its own Tea Party principles. It also does nothing to 

promote species recovery, a goal to which Republicans are willing to spend time 

talking about but are not willing to spend funds to actually achieve. 

Thank you and I look forward to hearing from our witnesses. 

The CHAIRMAN. I thank the gentlelady for her opening statement, and I want to welcome the panel here. And for the purpose 

of introduction, I will yield to the gentleman from Oklahoma to introduce the first witness. Mr. Mullin? 

Mr. MULLIN. Thank you, Mr. Chairman. It is my pleasure to introduce a fellow Oklahoman to this Committee. I would like to introduce Mr. Tyler Powell, a native of Guthrie, Oklahoma, who currently serves our State as the Deputy Secretary of Environment at 

the Office of Secretary of Environment. In the role of his services 

as the Secretary of Environment’s chief policy advisor—and he 

works to coordinate the State’s environmental cabinet agencies, including the Oklahoma Water Resource Board, the Oklahoma Department of Wildlife Conservation, and the Oklahoma Department 

of Environment Quality. 

Tyler is a graduate of Oklahoma State University and prior to 

joining the Secretary of Environment’s office, he served as a field 

representative for one of our own colleagues, Congressman Tom 

Cole. And I would encourage my colleagues not to underestimate 

this young man. He is extremely knowledgeable in what he does. 

I have a tremendous amount of respect for his knowledge. I have 

sat down and had extensive conversations with him, and I tell you 

he is quite an impressive man. 

So, Mr. Tyler Powell, I welcome you to this Committee, and 

thank you for making this long trip from God’s country. 

The CHAIRMAN. I thank the gentleman for his introduction. 

We also have Ms. Kathryn Brigham, who is the Chairwoman of 

the Columbia River Intertribal Fish Commission out of Portland, 

Oregon; Mr. Reed Noss, Professor of the Biology at the University 

of Central Florida, out of Orlando, Florida; Mr. Patrick Parenteau, 

Professor at Vermont Law School in South Royalton, Vermont. 

And I will yield to the gentlelady from Wyoming to make the introduction of the next witness. The gentlelady is recognized for the 

purpose of introduction. 

Mrs. LUMMIS. Thank you, Mr. Chairman. Well, it is my pleasure 

to introduce Steve Ferrell to the Committee today. He is a longtime public servant in the West, running several State-managed 

State wildlife agencies. He spent 30 years with the Arizona Game 

and Fish before finally seeing the error of his ways and coming to 

Wyoming. From 2008 to 2011 Steve Ferrell served as Director of 

the Wyoming Game and Fish Department, where he addressed 

issues such as wolves, grizzly bears, sage grouse conservation, wildlife diseases, and invasive species. Steve now serves Wyoming’s 

7

Governor, Matt Mead, as a lead policy advisor on wildlife and endangered species. 

I should note that Steve’s son is a combat veteran who is still 

deployed as a civilian in Afghanistan today. 

Steve, thank you so much for being here. Thanks for your long 

service. Thanks for your son’s service, your entire family’s sacrifices 

to our country. I look forward to your testimony today. 

Mr. Chairman, I yield back. 

The CHAIRMAN. I thank the gentlelady. And our last witness is 

Mr. Tom Jankovsky—I hope I said that correctly—who is the Commissioner of Garfield County in Colorado. I think that is in Mr. 

Tipton’s district, if I am not mistaken. 

Well, I want to welcome all of you here. Let me kind of give you 

the ground rules. All of you are asked to submit a prepared statement for the record, and that will appear in the record. For your 

oral remarks, though, if you could confine that to 5 minutes, we 

would very much appreciate it, because we obviously have Members that want to ask questions in the follow-up. And the way that 

works, you have the light in front of you. When the green light is 

on, it means you are doing very, very well. When the yellow light 

comes on, it means there is 1 minute left. And then, when the red 

light comes on—well, we just won’t go there, OK? 

[Laughter.] 

The CHAIRMAN. But if you could wrap up your remarks in that 

timeframe, and that way we can get through it. Keep in mind your 

full statement will be part of the record. 

So, Mr. Powell, we will start with you, and you are recognized 

for 5 minutes. 

STATEMENT OF TYLER POWELL, DEPUTY SECRETARY OF 

ENVIRONMENT, STATE OF OKLAHOMA, OKLAHOMA CITY, 

OKLAHOMA 

Mr. POWELL. Good morning, Mr. Chairman, members of the 

Committee. My name is Tyler Powell, and I serve as Oklahoma’s 

Deputy Secretary of Environment. I want to thank you for the invitation to testify on the success of State stewardship of species, and 

our efforts in working to conserve the Lesser Prairie Chicken. 

Currently, Oklahoma has 32 species subject to an endangered 

species listing determination by the U.S. Fish and Wildlife Service 

as part of a multi-district litigation settlement that was entered 

into. Of specific interest for Oklahoma was the Lesser Prairie 

Chicken, a grouse found across the Southern Great Plains, with a 

current range that includes parts of Colorado, Kansas, New Mexico, 

Texas, as well as a 12-county area in Western Oklahoma. The settlement the Service entered into requires that they make a listing 

determination on the Lesser Prairie Chicken by December 30, 

2012. This deadline was extended as a result of an action the Service undertook. And on November 30, 2012, the Service announced 

a proposed threatened listing. 

While we realize that this is a positive sign and can possibly 

avoid some of the most burdensome regulations, if they had chosen 

an endangered listing, it is still not an ideal outcome. The State of 

Oklahoma has been working to conserve the Lesser Prairie Chicken 

since a petition to add the species to the Endangered Species list 

8

was submitted in 1995. Our Department of Wildlife Conservation 

has now spent over $26 million on habitat conservation, research, 

land acquisition, and development of habitat conservation plans. 

This amount does not include the work that has been undertaken 

by private land owners, energy, and transmission companies. 

We also believe that State management of this species, by working directly with stakeholders to allow for responsible conservation 

is in the best interest of the Lesser Prairie Chicken. Beginning in 

2011, Governor Fallin and our State legislature asked our office to 

work with any and all stakeholders to develop a plan to ensure appropriate management of the Lesser Prairie Chicken, and preclude 

the need for a listing in Federal protection. 

We took a philosophy that the plan should be facilitated by the 

State, but developed in a cooperative fashion with private land 

owners, and a coalition of our State’s agriculture, oil and gas, 

transmission, wind energy, and transportation industries, who all 

have a stake in the potential listing of this bird, with a common 

goal of developing a plan that can serve the species and allows for 

responsible land use and development. 

After over a year of work, the Oklahoma Lesser Prairie Chicken 

Conservation Plan was released last October. Before the ink was 

dry, we began an unprecedented aerial survey and additional research on the ground, as required by the plan. The other four 

States with Lesser Prairie Chickens began to take notice of what 

Oklahoma was undertaking. Working through a group of wildlife 

biologists employed by the five State wildlife agencies, also known 

as the Lesser Prairie Chicken Interstate Working Group, the Western Governors’ Association, and the Western Association of Fish 

and Wildlife Agencies, the State wildlife directors of Colorado, Kansas, New Mexico, Texas, and Oklahoma are currently working with 

industry, Federal agencies, and other stakeholders to take the 

Oklahoma conservation framework to a range-wide plan. 

Our goal with a range-wide plan is to convince the Service that 

the five States have management of the species under control, and 

that Federal protection is not warranted. This plan includes 

prioritization of habitat conservation, a metric system that can be 

used to assess conservation practices, and to provide for a voluntary mitigation framework for development of otherwise impacted areas. 

This plan allows for responsible industry development, and allows for our State’s two leading industries of agriculture and 

energy to continue in a way that minimizes the impacts to the 

Lesser Prairie Chicken. We feel that this effort can have a greater 

outcome than any possible outcome provided through the Endangered Species Act, due to the unique role that the five States provide. 

While the range-wide plan is still under development, the Service 

began to take notice of our efforts. The five States submitted a 

draft plan to the Service on April 1st. On May 6th, the Service announced that they would reopen the comment period for the proposed listing, and begin to take comments on the range-wide plan, 

while also taking comments on a draft 4(d) rule. While we see this 

as a positive sign, we have great concerns with the Service putting 

forward a 4(d) rule. 

9

While it is helpful to what see the possible threatened listing 

would look like, and that it would allow any practices under the 

range-wide plan to continue, it seems premature and assumes that 

the Service may have already made up their final listing determination. A 6-month extension for scientific disagreement with 

statements in the Service’s proposed listing is needed to address 

issues within the listing documents, as well as to allow research 

underway to be used in a final listing decision. 

My boss, Secretary Gary Sherrer, made this request to Director 

Dan Ashe that has neither been acted upon or denied. As it stands 

today, the U.S.—or the Endangered Species Act does not adequately assess the work that States are providing, and provides little or no role for the States after a listing of the species. State wildlife agencies have built a trust with land owners and stakeholders 

that continue to benefit the Lesser Prairie Chicken and other species. We believe that this trust is lost when the Service takes over 

all management of a species under the ESA. 

As seen in other areas, States are best equipped to manage resources within their boundaries, and the Lesser Prairie Chicken is 

no different. Our goal is to have Oklahoma’s work on the Lesser 

Prairie Chicken be an example of how species of greatest conservation need should be managed. 

Thank you for the opportunity to be before you today, Mr. Chairman and members of the Committee. I look forward to taking any 

questions. 

[The prepared statement of Mr. Powell follows:]

Statement of Tyler Powell, Deputy Secretary of Environment,

Office of the Secretary of Environment, State of Oklahoma

Good morning, Mr. Chairman, Members of the Committee. My name is Tyler Powell and I serve as the Deputy Secretary of Environment for the Oklahoma Secretary 

of Environment’s office. I want to thank you for the invitation and opportunity to 

testify on successes of state stewardship of species and our efforts in working to conserve the Lesser Prairie Chicken. 

The Office of the Secretary of Environment serves at the pleasure of Governor 

Mary Fallin and advises her on environment and natural resource issues (Okla. 

Stat. tit. 27A, § 1–2–101). We are also responsible for coordination of the state’s environmental agencies, including the Oklahoma Department of Wildlife Conservation. 

As the date for publication of a final listing determination for the Lesser Prairie 

Chicken draws nearer, we feel compelled to highlight the successes of state stewardship of Candidate species and the continuing efforts of the states, working both individually and collectively, to conserve the Lesser Prairie Chicken, which are increasingly important, and must be given appropriate consideration in the final listing determination. 

Currently, Oklahoma has thirty-two petitioned species and an additional five candidate species, three of which have had proposed listing rules published (for a full 

list see Appendix A), which are subject to an endangered species listing determination by the U.S. Fish and Wildlife Service (Service) as part of a multidistrict litigation settlement that was entered into in 2011 (U.S. Fish and Wildlife Service MultiYear ESA Listing Work Plan). A species of particular interest for Oklahoma is the 

Lesser Prairie Chicken, an endemic grouse found across the southern Great Plains, 

with a current range that includes parts of Colorado, Kansas, New Mexico and 

Texas, as well as a twelve county area in western Oklahoma. 

The settlement the Service entered into required that they publish a proposed listing rule for the Lesser Prairie Chicken by September 30, 2012. This deadline was 

extended as a result of an action undertaken by the Service, and on November 30, 

2012 the Service announced a proposed threatened listing (Endangered and Threatened Wildlife and Plants; Listing the Lesser Prairie Chicken as a Threatened Species, 77 Fed. Reg. 738282, 73888 (Dec. 11, 2012)). While we realize this is a positive 

sign and could possibly avoid some of the most burdensome regulations if they had 

chosen an endangered listing, it is still not an ideal outcome. 

10

The State of Oklahoma has been working to conserve the Lesser Prairie Chicken 

since a petition to add the species to the Endangered Species List was submitted 

in 1995. Our Department of Wildlife Conservation has now spent over $26 million 

on habitat conservation, research, land acquisition and development of habitat management plans. This amount spent does not include the work that has been undertaken by private landowners, energy and transmission companies. We also believe 

that state management of this species, working directly with stakeholders to allow 

for responsible land use and development and conservation, is in the best interest 

of the Lesser Prairie Chicken. 

The Oklahoma Department of Wildlife Conservation (ODWC) has recently purchased over 17,660 acres for Lesser Prairie Chicken habitat improvement and protection, and entered into a long-term lease agreement with the Oklahoma Commissioners of the Land Office to protect another 3,270 acres of Lesser Prairie Chicken 

habitat adjacent to Oklahoma’s Beaver River Wildlife Management Area. In addition, ODWC has entered into management agreements with private landowners to 

enhance and protect an additional 28,000+ acres of Lesser Prairie Chicken habitat 

on private land in Oklahoma. 

Beginning in 2011, Governor Fallin and the state legislature asked our office to 

work with any and all stakeholders to develop a plan to ensure appropriate management of Lesser Prairie Chickens and thus preclude the need for a listing. We took 

a philosophy that a plan should be facilitated by the state, but developed in a cooperative fashion with private landowners and a coalition of our state’s agriculture, 

oil and gas, transmission, wind energy, and transportation industries who all have 

a stake in a potential listing of the bird, with a common goal of developing a plan 

that conserves the species and allows for responsible land use and development. 

After over a year of work, the Oklahoma Lesser Prairie Chicken Conservation Plan 

(OLEPCCP) was released on October 23, 2012 (Available at http://

www.wildlifedepartment.com/wildlifemgmt/lepc/cons_plan.htm). Before the ink was 

dry, we began to implement this plan with an unprecedented aerial survey and additional research and management on the ground. The first year of aerial surveys 

were hampered by poor weather and logistic difficulty, but we were able to survey 

areas that had never been surveyed before, and documented previously unknown 

Lesser Prairie Chicken leks. Additional Lesser Prairie Chicken research was contracted with researchers from both Oklahoma State University (ODWC Research 

Project LPC–OSU–12, Impacts of Fragmentation and Heterogeneity, Resource Selection, Survival and Recruitment of LEPC in Oklahoma) and the University of Oklahoma (ODCW Research Project LPC_OU–12, Population Ecology and Conservation 

of the Lesser Prairie Chicken and Its Ecosystem). We also identified 15 Core Areas 

(For a full list see Appendix B) for implementing substantial conservation efforts for 

the Lesser Prairie Chicken with a goal, towards which we are currently working, 

of each at least 70% of each Core Area consisting of high quality Lesser Prairie 

Chicken habitat. 

The ODWC, in meeting another objective of the OLEPCCP, developed an approved Candidate Conservation Agreement with Assurances (CCAA) for Lesser Prairie Chickens on Agricultural Lands in Oklahoma (up to 200,000 acres) (Final Candidate Conservation Agreement With Assurances, Final Environmental Assessment, 

and Finding of No Significant Impact; Lesser Prairie Chicken, Oklahoma, 78 Fed. 

Reg. 14111, 14114 (March 4, 2013)). We immediately began preparing Lesser Prairie 

Chicken Wildlife Habitat Management Plans (WHMP) and issuing Certificates of Inclusion to interested landowners. Landowners who have an approved WHMP are 

provided assurance, that, as long as they continue to implement the management 

practices prescribed in their WHMP, they will face no additional regulatory action 

or requirements and are also provided incidental take coverage if the Lesser Prairie 

Chicken becomes listed. To date, we have received applications from over forty landowners representing nearly 170,000 acres. We have also asked the Service for an 

additional 200,000 acres to be allowed in the enrollment, which would bring the 

total acreage eligible for CCAA in Oklahoma to 400,000 acres. 

The other four states within the Lesser Prairie Chicken’s range began to take notice of what Oklahoma was undertaking. Working as a group, wildlife biologists employed by the five state wildlife agencies (Lesser Prairie Chicken Interstate Working 

Group), the Western Governor’s Association, and the Western Association of Fish 

and Wildlife Agencies, the state wildlife agency directors from Colorado, Kansas, 

New Mexico, Texas and Oklahoma are currently working with industry, federal 

agencies, and other stakeholders to take the Oklahoma framework to a range wide 

plan. Our goal for the range-wide plan is to convince the Service that the five states 

have management of the species under control and that federal protection is not 

warranted. This plan includes prioritization of habitat conservation, a metrics system that can be used to assess conservation practices and to provide a voluntary 

11

mitigation framework for developed or otherwise impacted areas. The plan allows 

for responsible industry development and allows for our state’s two biggest industries of agriculture and energy to continue, in a way that minimizes impacts to the 

Lesser Prairie Chicken. We feel that this effort can affect a greater and much more 

positive outcome than any possible outcome provided through the Endangered Species Act due to the unique role that the five states play, and the Lesser Prairie 

Chicken management knowledge and experience that they bring to the table. 

While this range wide plan is still under development, the Service has taken notice of the effort. The five states submitted the draft plan to the Service on April 

1st. On May 6th the Service announced that they would reopen the comment period 

for the proposed listing rule and began taking comments on the five state plan, 

while also taking comments on a draft 4(d) rule (Endangered and Threatened Wildlife and Plants; Listing the Lesser Prairie-Chicken as a Threatened Species With 

a Special Rule, 78 Fed. Reg. 26302, 26308 (May 6, 2013). While we see this as a 

positive sign, we have concerns with the Service putting forward a 4(d) rule. While 

it is helpful to see what a possible threatened listing would look like and that a 

listing appears to allow any practices delineated under the range wide plan to continue, it seems premature and assumes the Service may have already made their 

decision on a final listing rule. A six-month extension for scientific disagreement 

with statements made in the Service’s proposed listing rule is needed to address 

issues within the listing document as well as to allow research currently underway 

to be used in a final listing determination. Oklahoma Secretary of Environment, 

Gary Sherrer, made this request on December 17, 2012 (Regulations.gov Document 

ID: FWS–R2–ES–2012–0071). This request to Director Dan Ashe of the US Fish and 

Wildlife Service has still not been accepted or denied. 

As it stands today the Endangered Species Act does not adequately assess the 

work that states are undertaking and provides little or no role for the states after 

listing of a species. State wildlife agencies have built trust with landowners and a 

stakeholder that continues to benefit the Lesser Prairie Chicken and other species. 

We believe, and have seen in past listings, that this trust is lost when the Service 

takes over all management of a species. As also seen in other areas, states are best 

equipped to manage resources within their boundaries. Our goal remains to have 

Oklahoma’s work on the Lesser Prairie Chicken be an example of how species of 

greatest conservation need should be managed. 

Thank you for the opportunity to be before you today, Mr. Chairman and Members of the Committee. I look forward to answering any questions you may have.

12


81318.001.eps

Appendix A. Oklahoma Species subject to Multi-district litlBiltion Settlement ActIon 
13

The CHAIRMAN. Thank you very much, Mr. Powell, for your testimony. 

And now I am pleased to welcome Chairwoman Brigham, who is 

the Chairwoman of the Columbia River Intertribal Fish Commission. And, Ms. Brigham, you are recognized for 5 minutes. 

STATEMENT OF THE HON. N. KATHRYN BRIGHAM, 

CHAIRWOMAN, COLUMBIA RIVER INTER-TRIBAL FISH 

COMMISSION, PORTLAND, OREGON 

Ms. BRIGHAM. Good morning, Chairman Hastings and Committee 

members. I am a member of the Confederated Tribes of the 

Umatilla Indian Reservation, Board of Trustees Secretary, and the 

Chair of the Columbia River Intertribal Fish Commission. It is my 

pleasure to address you this morning and share the Yakama, Nez 

Perce, Umatilla tribal fishery program successes where we have 

succeeded in rebuilding salmon stock that have been depleted or 

gone extinct in the Columbia River. And I will identify some institutional barriers to our success, and make recommendations on 

how they may be overcome. 

As a tribal leader, I have been involved in salmon management 

since 1976, CRITFC commissioner and a U.S. tribal representative 

to the Pacific Salmon Commission. CRITFC and our member Tribes 

have conducted a comprehensive treaty rights implementation program intended to maintain compliance with court orders, regional 

intergovernmental agreements and international salmon treaties. 


81318.002.eps
14

We are leaders in fisheries management and working in collaboration with 5 States, 11 Federal agencies, and private entities. 

To achieve our goal, we emphasize the highest level of scientific 

rigor and cost-effective management strategies. While many of the 

Pacific Coast salmon stocks remain in distress, our Tribes are 

building Columbia Basin success, acre by acre, tributary by tributary, and stock by stock. I would like to briefly highlight just a few 

of these successes, two reintroduction programs. 

The first is the Mid-Columbia Coho. Yakama designed an innovative supplementation approach when, within a few years of inception, returns were sufficient to transition to solely in-basin brood 

stock with recent adult returns as high as 32,000. 

The second is the Umatilla spring chinook reintroduction program in the Walla Walla River. This demonstrating how, when 

given an opportunity, adult fish will return, spawn, and rear in 

available habitat. 

The supplementation program, the Snake River chinook restoration is perhaps our most significant achievement, and we have a 

graph up there that shows that in 1995 the Nez Perce began a supplementation program. And then in 1998 things were returning. It 

also shows how hatcheries and wild fish are rebuilding in the 

Snake River Basin. It is a forum for both wild and natural hatcheries. 

I also have a bunch of success stories with details on this that 

I would like to enter for the record, and let you know that our 

Tribes are the forefront of research and innovation on hatchery 

supplementation in a region that is led to believe that wild fish are 

good and hatchery fish are bad. We are proving that is not the 

case. The data result shows that hatcheries can assist in rebuilding 

naturally spawning populations. So does new peer-reviewed 

science. The Nez Perce Tribe’s Johnson Creek Artificial Production 

Enhancement Project, a 13-year study, used DNA from returning 

adults to track parents and offspring to determine how successful 

hatchery fish are mating in the wild when compared to wild fish. 

This shows that hatcheries can be used to rebuild naturally spawning fish. 

I would like to request that this report be entered into the record 

for one reason, mainly, and that is that this is on the record, and 

it is not varied. We have very high concerns that this report is 

going to be ignored. 

The CHAIRMAN. Without objection, that will be part of the record. 

[Note: The report submitted for the record has been retained in the Committee’s official files and can be found at: 

http://naturalresources.house.gov/uploadedfiles/johnson

creek_brigham.pdf:] 

Ms. BRIGHAM. Thank you. I would like to identify a few barriers 

in recovery restorations and recommendations for the 12 ESA Columbia River stocks. 

In 2005 NOAA clarified their policy that allows production under 

the Endangered Species Act. Due to anti-hatchery philosophies by 

some NOAA staff, NOAA fisheries are under-utilizing the hatchery 

tool. The result is a 100-year work backlog and recovery timeframes. These timeframes are unacceptable, socially and biologically. 

15

We would like to create incentives for the Federal Government. 

We would like to have the gridlock goal and timeframe created. We 

would like cross-budgeting established. We would like to eliminate—oh, the other one is mass marketing. This is a 30-year record 

of expensive, failed practice without any conservation benefits. We 

would like to eliminate that and use this funding for restoration 

and allow co-managers to manage this on a case-by-case basis. 

And then, the ESA Migratory Bird Act and Marine Mammal Protection Act, they are not compatible with each other. We need to 

figure out how to make that work. Thank you. 

[The prepared statement of Ms. Brigham follows:]

Statement of The Honorable N. Kathryn Brigham, Chairwoman,

Columbia River Inter-Tribal Fish Commission

Chairman Hastings and members of the Committee, the Columbia River InterTribal Fish Commission (CRITFC) is pleased to share our views on the Endangered 

Species Act as it relates to Columbia River salmon. Our testimony will highlight: 

tribal restoration successes; institutional barriers to building abundance and; recommendations to overcome these barriers. 

CRITFC was founded in 1977 by the four Columbia River treaty tribes: Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of the Warm 

Springs Reservation of Oregon, Confederated Tribes and Bands of the Yakama Nation, and Nez Perce Tribe. CRITFC provides coordination and technical assistance 

to these tribes in regional, national and international efforts to protect and restore 

our shared salmon resource and the habitat upon which it depends. 

Our collective ancestral homeland covers nearly one-third of the entire Columbia 

River Basin in the United States. In 1855, the United States entered into treaties 

with the four tribes whereupon we ceded 40 million acres of our homelands to the 

United States. In return, the U.S. pledged to honor our ancestral rights, including 

the right to fish. Unfortunately, a perilous history brought the salmon resource to 

the edge of extinction and now 12 salmon and steelhead populations in the Columbia Basin are listed under the Endangered Species Act (ESA). 

Today, the CRITFC tribes are leaders in fisheries restoration and management 

working with state, federal and private entities. CRITFC’s member tribes are principals in the region’s efforts to halt the decline of salmonid, lamprey and sturgeon 

populations and rebuild them to levels that support ceremonial, subsistence and 

commercial harvests. To achieve these objectives, the tribes’ actions emphasize 

‘gravel-to-gravel’ management including supplementation of natural stocks, healthy 

watersheds and collaborative efforts. 

Columbia River Fisheries Management—A New Era of Collaboration

The Columbia Basin is in the greatest era of collaboration in our lifetimes. In 

2008 lengthy negotiations involving CRITFC and its member tribes resulted in three 

landmark agreements: 1) the 2008–2017 United States v. Oregon Management Plan 

with federal, tribal and state parties that sets forth collaborative fishery arrangements and specific artificial production commitments, and which is also an order of 

the federal court for the District of Oregon, and; 2) the Columbia Basin Fish Accords 

with federal action agencies overseeing the federal hydro system in the Columbia 

Basin, and; 3) a new Chinook Chapter of the Pacific Salmon Treaty. These agreements establish regional and international commitments on harvest and fish production efforts, commitments to critical investments in habitat restoration, and resolving contentious issues by seeking balance of the many demands within the Columbia River basin. Our tribes have committed to substantial on-the-ground projects 

to fulfill these agreements. Tribal propagation programs are an important part of 

these commitments and their successes. 

Tribal Successes—Stream by Stream, Stock by Stock

This section highlights just a sampling of the numerous successes our tribes have 

forged in the Columbia Basin. These include success through both re-introduction 

and recovery projects. 

Methow and Wenatchee River Coho 

Prior to the 20th century, an estimated 120,000 to 165,000 coho returned annually 

to mid-Columbia tributaries—the Yakima, Wenatchee, Entiat, Methow, and Spokane. Impassable dams, overfishing, unscreened irrigation diversions, habitat degVerDate 0ct 09 2002 09:43 Nov 26, 2013 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 Y:\02FISH~1\02MY16\81318.TXT MARK
16

radation, and hatchery policies all contributed to the virtual disappearance of coho 

in these tributaries. 

Responding to the losses the Yakama Nation began an aggressive suite of actions 

beginning with reintroduction of coho to the Methow River in 1997 and the 

Wenatchee River in 1999. Using the only coho stock available, an early-run, lower 

river coho, the Yakama Nation designed an innovative supplementation approach 

which acclimates juvenile fish to spawning areas. Within a few years of inception, 

returns were sufficient to transition to solely in-basin broodstock. 

Since the program’s inception, total adult coho returns to the two basins have 

ranged from 1,751 to 30,341 with a 10-year average of 8,576 fish. Significantly, 

adult returns in 2009 were at a record high (since the mid-1900s) and deemed sufficient to open a limited tribal and non-tribal fishery in Icicle Creek, a Wenatchee 

tributary. It was the first fishery in over half a century. Another record return—

nearly twice that of the 2009 record—occurred in 2011. 

Partnerships with Grant County and Chelan Public Utility Districts and the 

Methow Salmon Recovery Foundation have helped make this restoration project possible. Sportsfishers, tribal members, and non-tribal commercial fisheries are now 

sharing in the benefits. 

Similar coho reintroduction and restoration have occurred in the Yakima and 

Clearwater river basins. Both the Yakama Nation’s Yakima River Coho Re-Introduction Study and the Nez Perce Tribe’s Clearwater Coho Restoration Project are successful with results comparable to the Wenatchee/Methow program. Despite starting 

with out-of-basin hatchery stock, the Clearwater, Yakima, Wenatchee, and Methow 

rivers are seeing increasing returns of natural origin coho—fish that are adapting 

to their new environment and establishing spawning populations in new habitat 

areas. 

Walla Walla River Spring Chinook 

The Walla Walla subbasin is in the SE corner of Washington State within the 

northeast portion of the aboriginal title lands of the Confederated Tribes of the 

Umatilla Indian Reservation. Spring chinook were extirpated from the Walla Walla 

River for more than 80 years. 

The construction of the Nine Mile (Reese) Dam in 1905 preceded the disappearance of spring chinook and caused the Walla Walla River to run dry each summer 

for nearly 100 years. 

Then, in 2001, thanks to an agreement among three irrigation districts, the 

Umatilla Tribes, and federal agencies, the Walla Walla River started flowing all 

year long. This agreement supplemented earlier tribal, state, and landowner partnerships to improve fish passage and habitat. The tribe began its spring chinook reintroduction program because the species is critical to the Walla Walla River’s ecological health consistent with the tribes’ River Vision, and spring chinook are integral to the tribal cultural, spiritual and economic life. 

To initiate the program, the Umatilla Tribes released surplus Umatilla and 

Ringold adult spring chinook into the South Fork of the Walla Walla River. Needing 

additional broodstock, the Umatilla tribe was able to acquire an additional 250,000 

spring chinook smolts from Carson National Fish Hatchery in Carson, Washington 

and successfully reprogrammed these fish for release into the South Fork Walla 

Walla. 

The Umatilla tribe’s spring chinook reintroduction in the Walla Walla River is 

demonstrating how, when given the opportunity, adult fish will return, spawn, and 

rear in available habitat. Since the program began, adult spring chinook returns to 

the upper Walla Walla River and Mill Creek have increased from 200 fish in 2004 

(the first year of returns) to 1,135 in 2009. The tribal goal is 5,500 adults to the 

river mouth. Due to the program’s success, the tribe was able to open a tribal fishery on the Walla Walla in 2010, the first time in nearly a century. 

Snake River Fall Chinook 

Snake River fall chinook have been brought back from the brink of extinction. 

Listed as threatened under the Endangered Species Act, the estimated return of 

naturally-spawning Snake River fall chinook averaged 328 adults from 1986–1992. 

In 1994, fewer than 2,000 Snake River fall chinook returned to the Columbia River 

Basin. 

The construction of dams on the Snake River, beginning with Swan Falls in 1901 

and continuing with the Hells Canyon Dam Complex in the 1950’s and Lower Snake 

River dams in later years, eliminated or severely degraded 530 miles—or 80%—of 

the historical habitat. The most productive of that habitat was upriver from the site 

of Hells Canyon Dam, which has no fish passage. A precipitous decline of Snake 

17

River fall chinook followed with only 78 wild adults observed at Lower Granite Dam 

in 1990. 

Today the Nez Perce Tribe uses a cutting-edge hatchery program that supplements natural chinook populations with hatchery-reared fish of the same stock. The 

details of the Snake River Fall Chinook Program were refined through U.S. v. Oregon processes, and since 1995 the parties have included commitments for a Snake 

River Fall Chinook supplementation program. The development of numerous rearing 

and acclimation facilities in the Snake River Basin as well as the Nez Perce Tribal 

Hatchery is essential to the implementation of the program. The tribes secured the 

initial funding for the program through the U.S. Congress. In 1996, Congress instructed the U.S. Army Corps of Engineers to construct acclimation facilities under 

the Lower Snake River Compensation Plan. Today the Nez Perce Tribe operates and 

maintains three acclimation facilities in addition to the Nez Perce Tribal Hatchery. 

Together, the Nez Perce facilities release approximately 450,000 yearling and 2.8 

million sub-yearling fall chinook smolts each year into the Clearwater and Snake 

rivers. These releases have dramatically increased the number of natural and hatchery origin adult fall chinook returning above Lower Granite Dam. 

Total adult fall chinook salmon returns have increased from less than 500 adults 

to Lower Granite Dam annually from 1975–1995 to a record count of more than 

41,000 in 2010. The natural origin adult return in 2012 was just under 13,000 fish, 

which was a record since the construction of Lower Granite Dam in 1975. 

Utilizing Salmon Hatcheries for Natural Stock Recovery

The Columbia River treaty tribes’ approach to salmon recovery is to put fish back 

into the rivers and protect the watersheds where fish live. We employ supplementation and propagation to improve abundance, productivity, distribution and diversity to increase naturally spawning populations of salmon using biologically appropriate hatchery fish. 

CRITFC endeavors to secure a unified hatchery strategy among tribal, federal and 

state co-managers. To that end, we seek to design hatchery programs using the best 

available science and supported by adequate, efficient budgets. 

Best Available Science: Significant New Findings on Supplementation

Significant new research on hatchery and wild fish interaction, conducted by the 

Columbia River Inter-Tribal Fish Commission, was published in the journal Molecular Ecology in October, 2012. The study, ‘‘Supportive breeding boosts natural population abundance with minimal negative impacts on fitness of a wild population of 

chinook salmon,’’ found that hatchery-reared salmon that spawned with wild salmon 

had the same reproductive success as salmon left to spawn in the wild, a result that 

refutes earlier perceptions that interbreeding of hatchery-reared fish with wild fish 

will always decrease productivity and fitness of the wild populations. 

The study focused on a population of summer chinook whose natal stream is located in central Idaho, almost 700 miles upstream of the Pacific Ocean and the subject of the Nez Perce Tribe’s Johnson Creek Artificial Propagation Enhancement 

Project (JCAPE). 

The Nez Perce Tribe began the JCAPE Project in 1998 after tribal biologists observed critically low numbers of returning adult chinook to Johnson Creek, a tributary to the South Fork of the Salmon River in central Idaho, and upstream of eight 

large dams. By 1995 the number of spawning fish pairs in Johnson Creek had been 

reduced to five. 

Adult return numbers are now consistently meeting the Johnson Creek project’s 

short-term abundance goal of 350 returning adults, with the project already returning more than 1,000 summer chinook adults in some years. A limited harvest will 

be allowed when the tribe reaches a goal of 6,900 adults returning to Johnson 

Creek. The long-term ecological return or escapement goal is 19,000 summer chinook. The Nez Perce Tribe believes that by continuing the careful work of the 

JCAPE Project these goals stand a good chance of being met. 

Supplementation Did Not Reduce Fitness of Wild Fish The Johnson Creek research demonstrates two things: first, hatcheries don’t inherently change salmon genetics. Second, well managed supplementation programs can increase population 

abundance while minimizing the genetic impacts to wild fish populations. 

The study used DNA from all returning adults collected over a 13-year period to 

track parents and their offspring and to determine how successful hatchery fish 

were at mating in the wild when compared to wild fish. The study showed a clear 

boost to the number of adult salmon returning to the population from supplementation: Fish taken into the hatchery produced an average of nearly 5 times the number of returning adults compared to the fish that were left in the wild to spawn. 

A key finding of the Johnson Creek study was that a hatchery-origin fish spawning 

18

naturally with a wild fish had the equivalent reproductive success as two wild fish, 

suggesting that chinook salmon reared for a single generation in the hatchery did 

not reduce the fitness of the wild fish. Similarly, productivity of two hatchery fish 

spawning naturally was not significantly lower than for two wild fish. 

Identifying the Institutional Barriers to Recovery

The Law and Policy provides, but the Regulators do not 

ESA listing of salmon populations in the Columbia River has a complex and contentious history. While the Endangered Species Act explicitly provides for the use 

of artificial propagation in the conservation of listed species the role of propagation 

has not evaded this tension. Section 2(b) of the ESA (16 U.S.C. 1531(b)) calls for 

recovery of the species in the wild, while section 3(3) explicitly authorizes the use 

of propagation in the conservation of listed species. To resolve this legal tension, the 

National Marine Fisheries Service and U.S. Fish and Wildlife Service have adopted 

formal policies regarding controlled propagation following notice and comment rulemaking procedures. Joint NMFS–USFWS Policy on the Controlled Propagation of 

Species Listed under the ESA (65 FR 56916, September 20, 2000); and NMFS Policy 

on the Consideration of Hatchery-Origin Fish in Endangered Species Act Listing Determinations for Pacific Salmon and Steelhead (70 FR 123, June 28, 2005). The central tenet of the hatchery policy is the conservation of naturally spawning salmon 

populations and the ecosystems upon which they depend, recognizing the contribution that properly managed hatchery programs may provide. Hatchery fish will be 

included in assessing an ESU’s status in the context of their contributions to conserving natural self-sustaining populations.

Section 4 of the NMFS policy reads as follows:

Status determinations for Pacific salmon and steelhead ESUs generally consider four key attributes: abundance; productivity; genetic diversity; and 

spatial distribution. The effects of hatchery fish on the status of an ESU 

will depend on which of the four key attributes are currently limiting the 

ESU, and how the hatchery fish within the ESU affect each of the attributes. The presence of hatchery fish within the ESU can positively affect 

the overall status of the ESU, and thereby affect a listing determination, 

by contributing to increasing abundance and productivity of the natural 

populations in the ESU, by improving spatial distribution, by serving as a 

source population for repopulating unoccupied habitat, and by conserving 

genetic resources of depressed natural populations in the ESU. Conversely, 

a hatchery program managed without adequate consideration of its conservation effects can affect a listing determination by reducing adaptive genetic diversity of the ESU, and by reducing the reproductive fitness and 

productivity of the ESU. In evaluating the effect of hatchery fish on the status of an ESU, the presence of a long-term hatchery monitoring and evaluation program is an important consideration.

We believe the law and policies are clear—carefully-managed propagation should 

have an important role to play in conserving salmon listed under the ESA. However, 

regulators are typically dogmatic and contrary to these possibilities. 

The Mass-Marking Requirement 

Mass marking of salmon started in the early 1980s as a management tool for recreational fisheries to access healthy hatchery returns while theoretically minimizing 

harvest impacts on naturally spawning returns. The practice of mass marking 

hatchery fish began to spread to salmon in the Columbia Basin after the ESA listings in early 1990s and culminated in 2004 with federal appropriations language 

requiring mass marking at facilities receiving federal funding. 

The experience in the Columbia Basin for steelhead indicates that mass marking 

and the implementation of mark selective fisheries are not conservation measures. 

Naturally spawning steelhead in the Upper Columbia and Snake rivers were listed 

for protection under the ESA despite over a decade of mass marking and mark selective fishing. Money spent on mass marking and mark selective fishing could be 

reallocated to other actions that have a higher likelihood of contributing to recovery 

of naturally spawning populations. 

Mass-marking is detrimental to ocean fisheries monitoring. Harvest arrangements 

under the Pacific Salmon Treaty are based on coded wire tag (CWT) information. 

The Treaty includes a MOA that requires both countries to maintain a CWT database. Mass marking affects ocean fisheries sampling because the fin clip no longer 

indicates the presence of a CWT. A large number of samples with no tags will be 

19

sent to the tag labs, increasing the costs for the tag lab and complicating the data 

analysis, making it more difficult to assess ocean harvest impacts. 

Our tribes have requested that Congress reconsider the never-authorized requirement, delivered through prior appropriations language, to visibly mark all salmon 

produced in federally funded hatcheries. We have requested that federal mass-marking requirements be waived in the Columbia River Basin in favor of local managers 

to ensure compatibility with our overall objective of ESA delisting and with prevailing laws and agreements: US v Oregon, Pacific Salmon Treaty and the Columbia 

Basin Fish Accords. 

Incompatible Conservation Statutes 

All Columbia Basin salmon stocks suffer from predation. Predation is a naturally 

occurring source of mortality though the degree of that mortality may not be. Species laws like ESA, the Marine Mammal Protection Act and the Migratory Bird Act 

are all well intentioned, but poorly reconciled with one another. Predation amplified 

by species imbalance has become a significant source of mortality for salmon. Combined, protected marine pinnipeds and shore birds constitute the majority of predation on ESA stocks. Co-managers’ ability to affect these interactions are extremely 

limited. 

Our tribes are encouraged by the recent efforts by Congress to amend the Marine 

Mammal Protection Act through the Endangered Salmon and Fisheries Predation 

Prevention Act. This Act would provide clarity and flexibility to co-managers to manage and balance ‘‘hot-spots’’ of pinniped predation on salmon and other sensitive 

species. It would also provide tribes equitable access to management tools. 

Recommendations to Overcome Institutional Barriers: 

1) Incentivize de-listing for federal agencies—100-year recovery timeframes are unacceptable socially and biologically. Tribes and States and local 

governments have inherent incentives to de-list and fully recover species. Federal regulatory agencies do not. Creation of incentives and targets for de-listing 

could synchronize activities of co-managers with regulators. 

2) Resolve Scientific Gridlock through goal-driven management—We 

must ask the proper questions: Not ‘‘how does poor propagation management 

inhibit recovery,’’ but rather ‘‘how can propagation be integrated with and support recovery.’’

3) Eliminate Salmon Mass-Marking Requirements—repeal the mass-marking requirement for Columbia Basin salmon hatcheries and allow the practice 

to occur only with the concurrence of local co-managers. Salmon managers 

should be provided the latitude to make case-by-case decisions whether to mark 

fish and, if so, in the appropriate percentages. 

4) Cross-cut budgeting—NOAA Fisheries budget documents are nearly incomprehensible. The problem is not NOAA’s alone. Eleven separate federal 

agencies receive federal funds to address some aspect of salmon management. 

NOAA Fisheries resources should be directed to supporting the types of hatchery actions the tribes are taking. To do so, NOAA Fisheries must issue the necessary research permits in a timely fashion. NOAA Fisheries’ must find efficiencies in the preparation of biological opinions for hatchery genetic management plans 

5) Balance species interaction through greater flexibility of the Marine 

Mammal Protection Act and the Migratory Bird Act.

In summary, through combined efforts of the four tribes supported by a staff of 

experts, we are proven natural resource managers. Our activities benefit the region 

while also essential to the U.S. obligation under treaties, federal trust responsibility, 

federal statutes, and court orders. The Endangered Species Act is at its best when 

it provides beneficial coordination and resources. It is at its worst when it creates 

delay, bureaucracy and limits the tools co-managers need to restore abundance. We 

welcome fresh eyes and where necessary, new oversight from this Committee.

20

The CHAIRMAN. Thank you very much for your testimony, Ms. 

Brigham. 

And next we have Mr. Reed Noss, who is a Professor of Biology 

at the University of Central Florida in Orlando. And, Dr. Noss, you 

are recognized for 5 minutes. 

STATEMENT OF DR. REED F. NOSS, PROFESSOR OF BIOLOGY, 

UNIVERSITY OF CENTRAL FLORIDA, ORLANDO, FLORIDA 

Dr. NOSS. Thank you very much, Chairman Hastings, Representative Bordallo, and other members of the Committee. My name is 

Dr. Reed Noss, I am a Professor of Biology at the University of 

Central Florida. I have worked as a biologist for four decades, 

which happens to coincide precisely with the venerable history of 

the U.S. Endangered Species Act of 1973. 

I want to begin by reminding us why we have an Endangered 

Species Act. Well, the short answer is extinction. Americans were 

concerned in 1973, and they remain concerned today, about the extinction of species. As President Nixon said in signing the Act, 

‘‘Nothing is more priceless and more worthy of preservation than 

the rich array of animal life with which our country has been 

blessed.’’ Americans overwhelmingly hold the value that wildlife 

and nature are good and ought to be preserved. 

For example, in a 2006 national survey, 81 percent of respondents agreed that taking good care of nature is part of our duty to 

God. 

The first stated goal of the ESA, which I think sometimes we forget, is to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved. 


81318.003.eps
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But because Congress never provided clear direction for how to conserve ecosystems, we are basically stuck with trying to protect and 

recover most species on an individual basis. This is not the most 

cost-efficient means to protect our national heritage. 

However, lacking broader legislation, such as an endangered ecosystems act, the ESA is the best we have to work with. And, given 

the challenges and complexities of protecting and recovering species, the ESA has worked remarkably well. 

Preventing extinction means that we will still have the opportunity to benefit from nature in countless ways, from medical 

science and industry, for recreation, spirituality, and for the services such as the protection of—or provision of clean water, 

buffering of storm surge and flooding in coastal areas and otherwise, pollination of crops, production of multiple natural resources. 

One critical goal of the ESA, of course, is to recovery species to 

population sizes and distributions that will ensure their persistence 

in the long run, and where they can be delisted. It is important to 

understand that species recovery is extremely challenging today because the threats that led to species being listed in the first place 

have generally not subsided. In fact, many threats, such as population growth, resource consumption, urban sprawl, and climate 

change are only getting worse. 

Nevertheless, despite these continuing threats, the record of ESA 

is not so bad at all. As of December 2009, last time there was a 

complete listing figured, 25 previously listed species had been recovered. A high-profile example, which, of course, as Representative 

Bordallo mentioned, is the bald eagle, one of the first listed species, 

and our national symbol, by 2007 the bald eagle had recovered to 

the point where it was removed from the endangered species list. 

And I am lucky in Florida to see bald eagles literally every day, 

and it is a wonderful experience. 

Recent studies show that, in fact, most species, most listed species, have improved in status over time. Still, maintenance of viable populations of many listed species will continue—will require 

continuing species-specific interventions over the long term. Otherwise, they will go extinct. This finding should not be surprising. 

Human activity has made life tough for these species. Now they 

need our help to survive. It is really a very simple problem. 

In my written testimony I provide some information about a species I know well, the Florida Grasshopper Sparrow, which was listed under the ESA as endangered in 1986. Now, granted, the Florida Grasshopper Sparrow is no bald eagle, in terms of charisma. 

But if you look at this picture, I hope you will agree with me that 

it is actually a very attractive bird. Much more, it is also the flagship species of the Florida dry prairie—next slide—which is an ecosystem type only found in South Central Florida, nowhere else in 

the world. Now, the Florida Grasshopper Sparrow is declining 

abruptly—if I can have the next slide—it declined over 90 percent, 

due to conversion of its primary habitat to agriculture, especially 

improved pasture. But over the last decade, for reasons we don’t 

understand, it has declined another 80 percent. And we don’t really 

know why it is declining so rapidly. 

The U.S. Fish and Wildlife Service, due to funding limitations 

and probably some politics, has repeatedly refused to fund the necVerDate 0ct 09 2002 09:43 Nov 26, 2013 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 Y:\02FISH~1\02MY16\81318.TXT MARK
22

essary research to determine the cause of the decline. The likely 

extinction of the Florida Grasshopper Sparrow within the next few 

years does not represent a failure of the Endangered Species Act. 

It represents a failure of the U.S. Fish and Wildlife Service to obtain the necessary scientific knowledge to stop the population decline and achieve recovery. And this, in turn, is a result of limitations in funding and other problems. 

I discuss some other things in my written testimony, but I am 

out of time. So thank you very much for your attention. 

[The prepared statement of Dr. Noss follows:]

Statement of Dr. Reed F. Noss Professor of Biology,

University of Central Florida, Orlando, Florida

Good morning, Chairman Hastings, Representative Bordallo, and the other members of the Committee on Natural Resources. My name is Dr. Reed Noss. I am the 

Provost’s Distinguished Research Professor of Biology at the University of Central 

Florida. I have served as President of the Society for Conservation Biology and Editor-in-Chief of its scientific journal, Conservation Biology. I am an Elected Fellow 

of the American Association for the Advancement of Science. 

I have worked in the fields of ecology and conservation biology for four decades, 

coinciding precisely with the venerable history of the U.S. Endangered Species Act 

of 1973. I teach conservation biology, ecosystems of Florida, ornithology, and history 

of ecology. My current research centers on the vulnerability of species and ecosystems to land-use change, climate change, and sea-level rise, and what we might 

do to address those threats. I have nearly 300 publications, including seven books, 

and am rated as one of the 500 most highly cited authors in all fields. 

I am honored to address this committee during the 40th anniversary year of the 

U.S. Endangered Species Act, passed by Congress with nearly unanimous support 

and signed by President Richard Nixon in 1973. This Act is nothing less than one 

the most important and influential pieces of conservation legislation in the history 

of the world. 

Americans’ concern about extinction

I want to begin by reminding us why we have an Endangered Species Act (ESA). 

The short answer is extinction. The American people value their wildlife. They were 

concerned in 1973 and remain concerned today about the extinction of species. Extinction is forever; that is a cliche ́, but it is no less true. 

As President Nixon said in signing the Act, ‘‘Nothing is more priceless and more 

worthy of preservation than the rich array of animal life with which our country 

has been blessed. It is a many-faceted treasure, of value to scholars, scientists, and 

nature lovers alike, and it forms a vital part of the heritage we all share as Americans. I congratulate the 93rd Congress for taking this important step toward protecting a heritage which we hold in trust to countless future generations of our fellow citizens. Their lives will be richer, and America will be more beautiful in the 

years ahead, thanks to the measure that I have the pleasure of signing into law 

today.’’

Americans remain concerned about extinction. According to a February 2013 survey of 657 registered voters conducted by Public Policy Polling, 61% of Americans 

are ‘‘concerned about the rate that wildlife is disappearing’’ (http://phys.org/news/

2013-03-population-growth-threat-species-poll.html). With continued human population growth, conversion of natural areas to human uses, climate change, and sealevel rise, the Endangered Species Act is needed much more today than when President Nixon signed the Act into law in 1973. 

Section 2 of the ESA states a clear purpose for the Act: ‘‘The purposes of this Act 

are to provide a means whereby the ecosystems upon which endangered species and 

threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as 

may be appropriate to achieve the purposes of the treaties and conventions set forth 

in . . . this section.’’

Because Congress never provided clear direction for the first stated goal of the 

Act—to conserve ecosystems—we are stuck with trying to protect and recover most 

species on an individual basis or in relatively small groups. This is probably not the 

most cost-efficient means to protect biological diversity and the integrity of America’s ecosystems. However, lacking broader legislation, such as an Endangered Ecosystems Act, the Endangered Species Act (ESA) is the best we have to work with. 

23

And, given the challenges and complexities of conserving species, it works remarkably well. 

The value of species and nature

An implicit assumption of the Endangered Species Act is that every species has 

value. This, in fact, is a dominant ethical norm of most religious and philosophical 

traditions around the world. In the United States, most people who belong to mainstream religions believe that God created all species and saw them as good. For example, Deuteronomy 11:12: ‘‘A land which the LORD thy God careth for: the eyes 

of the LORD thy God are always upon it, from the beginning of the year even unto 

the end of the year. ’’ Furthermore, the Bible suggests that it is our duty as humans 

to care for and steward God’s creation. In a 2006 American Values Survey, 81% of 

respondents agreed that ‘‘Taking good care of nature is part of our duty to God’’ 

(http://ecoamerica.typepad.com/blog/files/ecoAmerica_AEVS_Report.pdf). 

A foundational principle of modern environmental ethics is that species have 

value in and of themselves, a view that is shared by a majority of Americans. A 

1993 national poll conducted by Washington State University, Utah State University, and Oregon State University, and based on 1,300 phone interviews, found that 

71% of respondents agreed with the statement, ‘‘wildlife, plants, and humans have 

equal rights to live and develop on the earth;’’ 89% agreed that ‘‘humans have an 

ethical obligation to protect plant and animal species’’ (http://

ir.library.oregonstate.edu/xmlui/bitstream/handle/1957/24967/

EMNO8562.pdf?sequence=1). 

A 2010 poll conducted for The Nature Conservancy by the Republican polling 

firm, Public Opinion Strategies, and the Democratic polling firm, Fairbank, Maslin, 

Maullin, Metz & Associates, found that ‘‘roughly equal proportions of American voters believe that the best reason to conserve nature is for its own sake (42%) and 

for the benefits it provides to people (45%)’’ (http://www.conservationgateway.org/

Files/Pages/key-findings-recent-natio.aspx). 

Besides intrinsic value, species have utilitarian or instrumental value. Individual 

species, for instance, may possess chemicals or structures in their bodies useful to 

medicine or industry, and there are many examples of such discoveries. Preventing 

extinction means that we still have the opportunity to make new such discoveries. 

Species also have value in terms of their role in ecosystems. It is now well established scientifically that the diversity of species in an ecosystem contributes to its 

‘‘resilience,’’ which is the ability to maintain or rapidly recover essential functions 

after disturbance. Ecosystem resilience is vitally important to human society because it assures the continuation of essential ecosystem services such as the provision of clean water, buffering of storm surges in coastal areas, pollination of crops, 

production of timber and other resources, and other benefits. 

It is a bit tricky to determine the contribution of each individual species to ecosystem resilience, mostly because the vast majority of species are poorly studied scientifically. Some species clearly play more pivotal roles than others. As noted in a 

recent review, ‘‘The presence of one or a handful of species, rather than the overall 

diversity of an ecosystem, is often the determinant of stability against different perturbations . . . depending on the types of stability and perturbation, different species may play key roles’’ (Ives and Carpenter 2007). A synthesis of grassland biodiversity experiments shows that high plant species richness is needed to maintain 

ecosystem services: ‘‘Although species may appear functionally redundant when one 

function is considered under one set of environmental conditions, many species are 

needed to maintain multiple functions at multiple times and places in a changing 

world’’ (Isbell et al. 2011). 

Given continued uncertainty about the ecological role of individual species, it is 

sensible to prevent the human-caused extinction of any species. As wildlife biologist 

(turned philosopher) Aldo Leopold stated decades ago, ‘‘To keep every cog and wheel 

is the first precaution of intelligent tinkering.’’

Americans are not ambivalent about the value of nature. The 2010 poll referred 

to above, conducted for The Nature Conservancy, found that 90% of registered voters in the U.S. believe that ‘‘Nature’s benefits for people’’ are ‘‘extremely important’’ 

or ‘‘very important.’’ The margin of error in this poll was plus or minus 3.5%. 

Listing and recovering species

One key step for preventing extinctions is to list species that meet the criteria 

for listing under the ESA. Many highly imperiled species are not currently protected 

under the Act. A recent study compared the coverage of species under the ESA with 

the international IUCN Red List of Threatened Species. The authors found, for example, that 40% of IUCN-listed birds in the U.S. are not listed under the ESA. Altogether, a nearly 10-fold increase in listing would be required for the ESA to protect 

24

all IUCN-listed species found in the U.S. (Harris et al. 2011). It is also important 

to list declining species expeditiously. Currently, the prospects for many listed species are dim because they were already severely imperiled at the time they received 

protection under the Act. 

Another critical goal of the ESA is to recover listed species to population sizes and 

distributions that will assure their persistence over the long run, in which case they 

can be delisted under the Act. One concern of people who question the efficacy of 

the Endangered Species Act is that species are not recovering in a timely manner. 

By definition under the ESA, a species is recovered when it is neither ‘‘in danger 

of extinction throughout all or a significant portion of its range’’ (ESA sec 3(6)) nor 

likely to become so ‘‘within the foreseeable future’’ (ESA sec. 3(20)). Therefore, to 

be legally considered recovered, a species must be sufficiently abundant and the 

threats it faces eliminated or managed such that delisting the species does not set 

off another round of decline (Neel et al. 2012). 

It is important to understand that species recovery is extremely challenging today 

because the threats that led to species being listed in the first place have generally 

not subsided. Many, such as human population growth, resource consumption, 

urban sprawl, and climate change, are only getting worse. 

Nevertheless, despite these continuing threats to species, the record of the ESA 

for species recovery is not so bad. As of December 2009, 25 previously listed species 

had been delisted and considered recovered. A high-profile example is the Bald 

Eagle, designated our national symbol by the Second Continental Congress in 1782 

and one of the first species to be placed on the endangered species list. For the Bald 

Eagle, the ESA clearly worked. By 2007, the eagle population had recovered sufficiently to be removed from the list. I see Bald Eagles virtually every day where I 

live in Florida, and it’s always a wonderful experience. 

A 2005 study found that 52% of species listed under the ESA either showed improvements in status or were not declining over the time period 1988–2002. The status of listed species generally has improved over time, with only 35% still declining 

13 years or more after protection under the ESA (Male and Bean 2005). 

Other researchers have noted improvements in recovery planning in recent years. 

For example, in comparison with plans completed prior to previous reviews in the 

early 1990s, Neel and colleagues found that ‘‘a larger proportion of species in later 

plans have the potential to be delisted, more have at least one quantitative recovery 

criterion, the overall numbers of populations and individuals required for recovery 

would increase, and these numbers would exceed the numbers when the recovery 

plan was written for more species’’ (Neel et al. 2012). 

Still, too many species listed as Threatened or Endangered are unlikely to recover. Delisting may not be possible for many species, even when a recovery plan 

is fully implemented. The U.S. Fish and Wildlife Service and National Marine Fisheries Service estimate that delisting may be possible for only 73% of listed species. 

Neel et al. (2012) note that ‘‘delisting objectives for abundance remain on the lower 

end of the continuum of viability, with 68%–91% falling below published thresholds 

for the minimum numbers of individuals. In addition, 144 species could be considered recovered with even fewer populations than existed when the recovery plan 

was written.’’ These facts suggest that the best available science is not always applied to delisting decisions. 

We must acknowledge the need to continue and strengthen conservation efforts 

for imperiled species, even after their formal recovery goals have been met. A recent 

study determined that maintenance of viable populations of many species will require continuing, species-specific intervention over the long term. The authors 

termed such species ‘‘conservation reliant’’ and determined 84% of the species listed 

under the ESA are conservation reliant and will require ‘‘continuing, long-term 

management investments’’ (Scott et al. 2010). This finding should not be surprising. 

Human activity has made life tough for these species. Now it is our responsibility 

to help them survive. 

The Florida Grasshopper Sparrow

I’d like to give you an example of a species I know well, and have studied in the 

field, a species which is declining to extinction despite being listed under the ESA 

as Endangered in 1986. This species is the Florida Grasshopper Sparrow. This bird 

occurs only in the unique dry prairie ecosystem of south-central Florida, some 90% 

of which has been converted to improved pasture, agriculture, and recently, urban 

sprawl. 

This sparrow is admittedly no Bald Eagle in terms of public charisma, but it 

means a lot to many of us in Florida. Close-up, it’s really quite attractive (see photo 

below) and it is the flagship species of the Florida dry prairie, an ecosystem found 

25

nowhere else on earth (see photo below). Given that the first stated goal of the ESA 

is to conserve ecosystems, this sparrow potentially plays a very valuable role.

After declining at least 90% from habitat loss during the 20th century, the Florida 

Grasshopper Sparrow has declined another 80% just over the past decade (see figure 

below), and it is now probably the most highly imperiled bird in the continental 

United States.

We don’t know exactly why the Florida Grasshopper Sparrow has declined so 

abruptly over recent years. Although we have some promising hypotheses, the U.S. 

Fish and Wildlife Service has repeatedly refused to fund the necessary field research 


81318.004.eps 81318.005.eps 81318.006.eps
26

to determine the cause, or causes, of decline. I am a founding member and former 

chair of the Florida Grasshopper Sparrow Working Group, an interagency group of 

scientists and managers, which serves as the de facto recovery team for the sparrow. 

We advise the U.S. Fish and Wildlife Service regarding protection, recovery, and 

management strategies and actions. Over the past few years we have submitted several proposals for field research on the Florida Grasshopper Sparrow to determine 

the causes of decline and what might be done to reverse the decline and recover the 

species. The local (Vero Beach) Field Office of the U.S. Fish and Wildlife Service 

has avidly encouraged and solicited our research proposals and sent them up the 

line, where they are uniformly and perhaps arbitrarily rejected by the Regional or 

National Offices of the Service. 

The point is, we cannot recover species if we don’t understand the causes of decline and the basic biology of the species. The likely extinction of the Florida Grasshopper Sparrow within the next few years does not represent a failure of the Endangered Species Act. It represents a failure of the U.S. Fish and Wildlife Service to 

obtain, through research, the scientific knowledge needed to stop the population decline and achieve recovery—and then act on that information. This failure, in turn, 

reflects at least in part the insufficient budget given to the Endangered Species Program of the Service by Congress and the Administration. 

Endangered species or private property rights?

Finally, I will address briefly the perceived conflict between endangered species 

protection and private property rights. Conflicts between non-Federal landowners 

and the welfare of imperiled species are inevitable because, according to the U.S. 

General Accounting Office (1994), more than half of the species listed under the 

ESA have 81% of more of their habitat on private or other non-Federal lands. Species distributions seldom conform to political boundaries, so the states, tribes, and 

local jurisdictions are generally not well suited to oversee protection and recovery 

of species listed under the ESA. This is a federal—and in some cases an international—responsibility. 

Our country has mechanisms to resolve conflicts between endangered species protection and private property rights. For instance, in the 1982 amendments to the 

ESA, Section 10(a) authorizes the U.S. Fish and Wildlife Service and National Marine Fisheries Service to issue to non-Federal entities a permit for the ‘‘incidental 

take’’ of endangered and threatened species on their lands. An incidental take permit allows a landowner to proceed with an activity that is legal in all other respects, 

but which results in the ‘‘incidental’’ taking of a listed species. 

A number of incentives exist for non-Federal landowners who have listed species 

or species proposed for listing on their properties to pursue incidental take permits. 

The most significant requirement of Section 10(a) is that an application for an incidental take permit must include a habitat conservation plan (HCP) for any and all 

listed species that might be subject to take under the proposed activity. The purpose 

of an HCP is to minimize and mitigate the effects of the permitted action (for example, new housing development) on listed species. HCPs are intended to accomplish 

this objective through the protection, restoration, and management of habitat for the 

species covered by the plan. 

A general benefit for private landowners, counties, and local jurisdictions who engage in the Section 10(a) permitting and the habitat conservation planning process 

is that a well-developed and defensible HCP, especially one that addresses the needs 

of multiple species and ecosystems, streamlines the permitting process and results 

in reduced costs to landowners and government in the long term. Some landowners 

who have multiple listed species on their properties have described HCPs enthusiastically as ‘‘one-stop shopping,’’ i.e., a single permit allows them to address all 

listed species concerns simultaneously for the specified period of the incidental take 

permit (generally from several years to 75 years). 

In reality some HCPs have been of high quality and successful in meeting conservation objectives (so far), whereas others have been dismal failures. It all comes 

down to the quality of the science underlying the HCP, the moral commitment of 

the landowners and the agencies to follow the best available science for the benefit 

of the species concerned, and the reliability of long-term funding to implement the 

plan and to make adjustments to the plan (what we call ‘‘adaptive management’’) 

as conditions change and new knowledge about the species and their ecosystems is 

obtained. 

Our responsibility

To conclude, when President Nixon signed the ESA into law in December 1973, 

it was not a partisan issue. The bill was written by Republicans and Democrats, 

and it passed the House by a vote of 355 to 4. Respect for life and prevention of 

27

extinction is a universal ethical value. As Americans, we should be proud to have 

a powerful law that reflects this ethical value, and we should do everything we can 

to assure its successful implementation. I trust that this committee will take this 

responsibility seriously. 

Thank you for the opportunity to testify before this esteemed committee. 

Literature Cited in this Testimony: 

General Accounting Office, U.S. 1994. Endangered Species Act: information on 

species protection on nonfederal lands. GAO/RCED–95–16 . http://www.gao.gov/assets/230/220827.pdf. 

Harris, J.B.C. Harris, J.L. Reid, B.R. Scheffers, T.C. Wanger, N. S. Sodhi, D.A. 

Fordham, and B.W. Brook. 2012. Conserving imperiled species: a comparison of the 

IUCN Red List and U.S. Endangered Species Act. Conservation Letters 5:64–72. 

Isbell, F., V. Calcagno, A. Hector, et al. 2011. High plant diversity is needed to 

maintain ecosystem services. Nature 477:199–202. 

Ives, A.R., and S.R. Carpenter. 2007. Stability and diversity of ecosystems. 

Science 317:58–62. 

Male, T.D., and M.J. Bean. 2005. Measuring progress in US endangered species 

conservation. Ecology Letters 8:986–992. 

Neel, M.C., A.K. Leidner, A. Haines, D.D. Goble, and J.M. Scott. 2012. By the 

numbers: How is recovery defined by the US Endangered Species Act? BioScience 

62:646–657. 

Scott, J.M, D.D. Goble, A.M. Haines, J.A. Wiens, and M.C. Neel. 2010. Conservation-reliant species and the future of conservation. Conservation Letters 3:91–97. 

The CHAIRMAN. Thank you very much, Dr. Noss. 

We now have Mr. Patrick Parenteau, who is a Professor at the 

Vermont Law School in South Royalton, Vermont. You are recognized for 5 minutes. 

STATEMENT OF PATRICK PARENTEAU, PROFESSOR OF LAW, 

VERMONT LAW SCHOOL, SOUTH ROYALTON, VERMONT 

Mr. PARENTEAU. Thank you, Chairman Hastings and Representative Bordallo, for the opportunity to appear here. My career, like 

Dr. Noss, has also spanned about 40 years in tracking the Endangered Species Act. And the ESA has occupied a major focus of my 

work over those years. And I have seen the Act from every perspective you can imagine. I have been on both sides of the cases. I have 

represented plaintiffs, I have represented defendants, I have represented the Federal Government, I have represented the State 

governments. So I believe I have some perspectives that might be 

of some value to the Committee. At least I hope so. 

Make no mistake about it. We are facing an extinction crisis. 

Human-caused extinction rates are 100 to 1,000 times background 

rates of extinction, according to Dr. E.O. Wilson, Dr. Reed Noss, 

and many other distinguished conservation biologists. And at the 

rate we are going, we are looking at rates of 10,000 times background rates. We are looking at the prospect of losing half of the 

species on earth in some of the worst case analyses of global climate change and other forces that are affecting habitat and ecosystems upon which these species depend. 

We do have an ethical obligation to do something about that. 

Much of what is happening can be avoided. Much of what is happening with the resources that are being lost is waste. There are 

alternatives that can be used to avoid some of these consequences. 

It is to human benefit to do so. The ecosystem services that Reed 

Noss has mentioned amount to trillions of dollars annually on a 

global basis. So we are talking about economic assets, as well as 

28

we are talking about natural values, intrinsic values of species and 

ecosystems. 

The ESA is a vital safety net for these species. There is no question but hundreds of species would have gone extinct by now but 

for the Endangered Species Act, some of which are very well-known 

species: the eagle, the alligator, the condor, the whooping crane. 

But many of which are not. They are at the bottom of the food 

chain. But as E.O. Wilson properly points out, it is the little things 

that run the world. Those are the parts of the ecosystem we have 

to be paying attention to because those are the things that provide 

the pollination and other services that Dr. Noss talks about. 

So, the ESA is an absolutely vital piece of the puzzle, but it is 

a tiny piece of the puzzle, in terms of the challenges that we are 

facing if we are going to turn this situation around, try to preserve 

some of the earth’s magnificent biological diversity. The irony of 

the moment is the earth has the richest composition of biological 

diversity in its geologic history, and yet we are losing it at the most 

rapid rate we have seen in many, many millions of years. 

Why does recovery take so long under the Endangered Species 

Act? That is what everyone wants to know. Well, if you look at the 

data, 85 percent of the species that are listed under the ESA are 

there because of habitat loss. In some cases, catastrophic habitat 

loss. Over 95 of habitat has been lost, in the case of many of these 

species. By the time they are listed, the window of opportunity to 

save them is very narrow. The longer it takes to list them, the 

longer it takes to designate critical habitat, the longer it takes to 

implement recovery plans, the longer it takes to spend the money 

to conserve the habitat that remains, the less chance they have for 

survival, the greater the conflict, and the less cost-effective the 

measures that you have at your disposal. So, it is absolutely critical 

that species get listed, and that these other mechanisms get implemented. 

Again, why is recovery so difficult? It is not possible to turn 

around that catastrophic loss of habitat that has taken hundreds 

of years to accumulate in a matter of decades, even. For some of 

these species, we are probably talking about a century or more, if 

ever, some of these species can be totally delisted. The whooping 

crane may be a perpetual care species, simply because of the limited capability for it to reproduce, and so on. So, those are some 

of the reasons. 

What about the role of litigation? The primary reason for the citizen suit provision of the Endangered Species Act and so many 

other environmental statutes is to hold the government accountable. The cases that we are talking about are situations where 

courts have found repeatedly that the government has deliberately 

and repeatedly violated mandates, non-discretionary duties. That is 

why we have litigation. 

Why do we have so many violations? Because the agencies are 

not properly staffed, they are not properly funded. The courts have 

found this over and over again. The courts have said, ‘‘Either 

change the law, or fund the law, but don’t come to court and say, 

‘We need more time, we are not going to obey the mandates of the 

statute.’ Courts don’t exist to condone violations of the law.’’ If we 

want a rule of law in this country, we need litigation to hold the 

29

1See Millennium Ecosystem Assessment, Ch. 4 Biodiversity, 3 (2005); available at http://

www.unep.org/maweb/en/Index.aspx. The study found that over the past few hundred years humans may have increased the species extinction rate by as much as three orders of magnitude. 

The study also found that 60 percent of the world’s ecosystem services assessed have been degraded or are being used unsustainably. 

government accountable. That is the primary reason for these lawsuits. 

Finally, some of the flexibility mechanisms that the law provides: 

safe harbors, no surprises, candidate conservation agreements, conservation banks, 4(d) rules, habitat conservation plans, recovery 

credits, tax deductions, many, many market-based solutions. Everybody that is at this table—tribal, State, local, nonprofit, profit, forprofit groups—everybody has a role to play. 

And everything that is being done so far is fine, but we need to 

do much more, if we are going to turn this situation around. Thank 

you, Mr. Chairman. 

[The prepared statement of Mr. Parenteau follows:]

Statement of Patrick Parenteau, Professor of Law,

Vermont Law School, South Royalton, Vermont

My name is Patrick Parenteau. I am professor of law and senior counsel to the 

Environmental and Natural Resources Law Clinic at Vermont Law School. I have 

been actively involved in the practice of environmental law for almost forty years. 

My career spans every facet of environmental law. I have held senior positions in 

the non-profit sector with the National Wildlife Federation, in the federal government as general counsel with EPA Region One, in state government as Commissioner of the Vermont Department of Environmental Conservation, in the private 

sector as of counsel with the law firm of Perkins Coie, and in academia as director 

of the environmental law program at VLS. I have substantial experience with the 

subject matter of this hearing. I was involved in some of the earliest and most important cases under the Endangered Species Act; I testified in the legislative hearings on the amendments to the Act in 1978, 1979, and 1982; I have appeared in 

all four proceedings before the endangered species exemption committee created by 

the 1978 amendments; I served as special counsel to the U.S. Fish and Wildlife 

Service in the northern spotted owl exemption proceedings; I have commented on 

a number of rulemaking sunder he Act and have published numerous articles on 

its successes as well as its shortcomings. 

I would like to thank Chairman Hastings and Representative Bardallo for providing me this opportunity to share the following observations on the subject of today’s hearing. 

I. THE EXTINCTION CRISIS IS REAL AND THE COOPERATION AND 

COMMITMENT OF ALL PARTIES—PUBLIC AND PRIVATE, FOR 

PROFIT AND NOT FOR PROFIT—IS REQUIRED TO MEET THE CHALLENGE.

The consensus of the scientists who study species and ecosystems is that we are 

in the midst of the sixth great extinction rivaling the five mass extinction events 

in earth’s history.1 A poll by the American Museum of Natural History found that 

7 in 10 biologists believe that mass extinction poses a colossal threat to human existence, a more serious environmental problem than even its contributor, global 

warming, and that the dangers of mass extinction are woefully underestimated by 

most everyone outside of science. Professor EO Wilson (The Diversity of Life) has 

calculated that human caused extinction rates are between 100 and 1,000 times the 

natural background rate of extinction and could climb as high as 10,000 times in 

a few decades. According to the latest IUCN ‘‘Red Book,’’ of the 40,168 species that 

the 10,000 scientists in the World Conservation Union have assessed, 1 in 4 mammals, 1 in 8 birds, 1 in 3 amphibians, and 1 in 3 conifers are at risk of extinction. 

The peril faced by other classes of organisms is less thoroughly analyzed, but fully 

40 percent of the examined species on the planet are in danger, including up to 51 

percent of reptiles, 52 percent of insects, and 73 percent of flowering plants. Here 

in the U.S. the number of species listed under the ESA has grown to over 2000, 

and hundreds, perhaps thousands more are candidates for listing. 

The causes of this dramatic loss of biological diversity are well known: habitat 

loss; invasive species; pollution; unsustainable harvests of marine life; and, looming 

30

2Oregon Department of Fish and Wildlife http://www.dfw.state.or.us/mrp/salmon/. 3 NaturServ http://www.natureerve.org/visitLocal/. 4 American bar Association, Endangered Species Act: Law Policy and Perspective, 2d ed. 

Ch. 11 (2010). 5 National Academies Press, Science and the Endangered Species Act, 4 (1995). 6Mark W. Schwartz, ‘‘The Performance of the Endangered Species Act,’’ Annual Review of 

Ecology, Evolution, and Systematics Vol. 39: 279–299 (2008). 

ever larger, climate disruption. The truth is that humans exert a profound effect on 

the earth’s ecosystems and evolutionary processes. The good news is that humans 

can change the way they use land and water and other natural resources and thereby reduce their impact on natural systems. However it will take an unprecedented 

level of cooperation and commitment among all levels of government and all stakeholders in order to halt and reverse the march towards extinction. 

As the title of this hearing indicates tribal, state and local governments all have 

important roles to play in species conservation. So does the federal government and 

so do the other nations of the world. It is not either/or; it is all of the above. There 

are many examples of how each level of government contributes to conservation. 

The Nez Perce Tribe assumed management of the gray wolf recovery process in 

Idaho. The Columbia River Intertribal Fish Commission has been working for decades to restore the depleted runs of Pacific salmon. The Yurok Tribe has been studying ways of reintroducing the California condor to their lands. The list goes on. 

There are many examples of what states are doing as well: The California Natural 

Communities Conservation Program; the Oregon salmon management plan; 2 the 

network of state natural heritage programs in every region of the country; 3 the 

many statewide habitat conservation plans adopted under the ESA; and the fact 

that all but four states have adopted state endangered species acts modeled on the 

ESA; 4

Local governments also have a key role to play in promoting smart growth, preventing sprawl, investing in green infrastructure through proper management and 

protection of floodplains, wetlands and open space. The very first habitat conservation plan was created in San Bruno County California to conserve the habitat of the 

San Bruno blue butterfly. Volusia County in Florida developed a comprehensive 

beech lighting program to protect nesting sea turtles. Austin Texas created one of 

the first multi-species HCPs to balance development and conservation goals. I am 

sure there are many more examples of local success stories that unfortunately do 

not get as much attention as the controversies that periodically erupt when development collides with the needs of species. 

II. THE ESA IS AN INDISPENSABLE TOOL IN THE SPECIES AND ECOSYSTEM CONSERVATION EFFORT

2013 marks the 40th anniversary of the ESA. To say that the Act has led a tumultuous life would be an understatement. A law first proposed by President Nixon 

and passed overwhelmingly in both the House and Senate has become a lightning 

rod for political attack. Too often these attacks have shed more heat than light on 

the issues and the genuine problems that do exist. The ESA is not a perfect law; 

nor are any of the other laws passed by Congress. But the flaws have more to do 

with how the law is implemented than how it is written. A full discussion of all the 

ways in which the administration of the Act could be improved as well as what 

amendments could actually strengthen the Act is beyond the scope of this presentation. Suffice to say I welcome the day when there can be a sober and objective 

analysis of ways in which the threats to species can be reduced and the ecosystems 

on which they depend can be better conserved while enhancing sustainable development and job creation goals. 

For now however, it is clear that but for the ESA many more species would have 

gone extinct and many more would be doomed to that fate. According to the National Research Council, the ESA has saved hundreds of species from extinction.5

Some of the more charismatic species rescued from the brink include the whooping 

crane, bald eagle, peregrine falcon, gray and red wolf, grizzly bear, and gray whale. 

A study published in the Annual Review of Ecological Systematics calculated that 

172 species would potentially have gone extinct during the period from 1973 to 1998 

if Endangered Species Act protections had not been implemented.6 According to the 

U.S. Fish and Wildlife Service, of the listed species whose condition is known, 68 

percent are stable or improving, and 32 percent are declining. The longer a species 

enjoys the ESA’s protection, the more likely it is that its condition will stabilize or 

improve. The law has also helped to preserve millions of acres of forests, beaches, 

wetlands and wild places that serve as critical habitat for these species. 

The point is that a national law is needed to deal with a problem as all-encompassing as extinction. Tribes, states and local governments have done a lot and 

31

7Wilcove et al, ‘‘Quantifying Threats to Imperiled Species in the United States,’’ Vol. 48, No. 

8 (Aug., 1998), pp. 607–615. 8 Blumm, ‘‘The Bush Administration’s Sweetheart Settlement Policy: A Trojan Horse Strategy 

for Advancing Commodity Production on Public Lands,’’ Environmental Law Reporter, Vol. 34, 

p. 10397, May 2004. 9 AUTHORITY OF THE UNITED STATES TO ENTER SETTLEMENTS LIMITING THE FUTURE EXERCISE OF EXECUTIVE BRANCH DISCRETION June 15, 1999 http://

www.justice.gov/olc/consent_decrees2.htm. 

could do much more but they cannot do everything necessary to manage wide ranging species like wolves and bears, let alone global species like turtles and whales. 

The threats to these species are increasingly global such as climate disruption. The 

response to these threats must be ecosystem based and occur on a landscape scale. 

As species and ecosystems cross political boundaries so too must the solutions. Species must a have a floor of protection to survive. Leaving protection to the uncertainties of a piecemeal approach and the geo-political differences that exist in the 

country will not work. A good example of this problem is the Dead Zone in the Gulf. 

It is caused by the runoff of nutrients form the vast Mississippi River watershed. 

No one state can fix the problem. The upstream states lack the incentive to incur 

the costs of controlling the runoff from their farms for the benefit of the downstream 

states and their fishing industry. The Clean Water Act provides a mechanism to address this kind of trans-boundary problem. Without a federal law little progress 

would be possible. The same is true is species conservation, perhaps even more so. 

It is difficult to judge the worth of individual species some with obscure names and 

no known commercial value. It is always easy to justify one more project that takes 

one more acre of shrinking habitat. Yet this whittling away of habitat, an acre at 

a time, is responsible for 85% of the species on the ESA list.7 The larger the list 

grows and the longer it takes to implement real recovery efforts the greater the 

costs and disruption and the less chance there is for a promt recovery. 

Having a central repository of information and expertise about species and the efficacy of various recovery techniques is also beneficial and facilitates efforts by 

tribes, states and local agencies that wish to participate in conservation efforts. Of 

course this is a two way street. Federal agencies have much to learn from those who 

are closest to the resources and activities affected by the ESA. 

III. ‘‘SUE AND SETTLE’’ IS A RED HERRING THAT DISTRACTS FROM 

THE CRITICAL NEED TO STRENGTHEN THE ESA’S RECOVERY 

MECHANISMS

I have read the Chamber of Commerce report ‘‘Sue and Settle: Regulating behind 

Closed Doors.’’ While it makes for entertaining reading I find it badly misrepresents 

what actually happens in these cases. 

First, ‘‘sue and settle’’ is an old story, and it has more to do with politics than 

reality. Not so long ago the George W. Bush administration was accused of entering 

into sweetheart deals with industry. My colleague Michael Blumm wrote a law review article documenting a number of these deals including one that sought to relinquish federal rights on public lands and extinguish wilderness study areas without 

conferring with congress as required by law.8

The Chamber report states:

‘‘Sue and settle occurs when an agency intentionally relinquishes its statutory 

discretion by accepting lawsuits from outside groups that effectively dictate the 

priorities and duties of the agency through legally binding, court-approved settlements negotiated behind closed doors—with no participation by other affected 

parties or the public.

Almost nothing in that statement is accurate. First, most of the cases cited involve actions seeking to enforce mandatory duties imposed by statute. In the case 

of the ESA nearly all of the cases involve citizen suits to enforce statutory deadlines 

such as the deadline for making decisions on whether to list a species or designate 

critical habitat. Where discretion is involved suits are brought under the Administrative Procedure Act (APA) and are subject to a standard of review that is highly 

deferential to the agency. In no case of which I am aware has an agency ‘‘intentionally relinquished its statutory discretion.’’ Agencies may choose not to raise arguments they may have on jurisdictional or procedural grounds but that is not the 

same as relinquishing discretionary authority. Since the days of Attorney General 

Edwin Meese the Department of Justice has had a policy that explicitly forbids entering into agreements that either cede statutory authority or bind future administrations or congressional appropriations.9 Every consent decree I’ve ever seen has 

32

10See FWS Listing Workplan to implement the settlements in CBD v FWS and WildEarth 

Guardians v FWS http://www.fws.gov/endangered/improving_esa/listing_workplan.html. 11 Barry J. Brosi and Eric G.N. Biber, ‘‘Citizen Involvement in the U.S. Endangered Species 

Act,’’ Vol. 337 Science (August 17, 2012). 12 Robert L. Glicksman, ‘‘The Value of Agency-Forcing Citizen Suits to Enforce Nondiscretionary Duties,’’ 10 Widener L. Rev. 353 (2004). 

a boilerplate provision explicitly stating that the agency retains all of its statutory 

discretion. 

Second, though it is certainly true that settlement negotiations occur ‘‘behind 

closed doors,’’ which is the only way cases can be settled, proposed consent decrees 

under the ESA and other environmental statutes must be published in the Federal 

Register, the public and affected parties are allowed to comment, and the judge 

must make a finding that the consent decree is in the public interest and is not contrary to law. I am aware of instances, including one case in which I was involved, 

where as a result of public comment a judge has declined to enter a decree and ordered the parties back to the negotiation table. Addition the DOJ has the statutory 

right to comment on ever consent decree in a citizen suit and object to agreements 

that compromiser federal interests. Courts pay particular attention to the views of 

DOJ in such cases. 

Third, settlements like the ones in the ‘‘mega listing’’ cases cited by the Chamber 

do not ‘‘dictate the priorities and duties of the agency.’’ Rather these cases enforce 

duties already embodied in the statute. Indeed if there was no duty there would be 

no lawsuit and no settlement. Moreover, the listing settlements do not dictate what 

the ultimate decision must be as to any particular species. Rather the settlements 

establish a reasonable timetable for making decisions that in some case are long 

past the statutory deadline.10 Again if conservation is the goal the sooner a species 

gets listed the better the chances of recovery and the less costly and disruptive it 

will be for everyone. 

Fourth, contrary to the arguments of some, is little evidence that ESA citizen 

suits distort agency priorities and actually impede recovery efforts. In one of the few 

empirical studies done on this question the authors actually concluded that the citizen suits targeted species facing higher threats than those identified by FWS as 

deserving of higher priority for listing.11 The authors stated: ‘‘Among species in conflict with development citizen initiated species are significantly more threatened 

than FWS-initiated species.’’

Fifth, batch listings like those agreed to in the mega listing cases are actually 

more efficient than listing species one by one. Having a definite timetable with a 

cease fire agreement to allow the agencies to work through the backlog makes 

sense. The settlements in the listing cases have given the agencies more control over 

the process than they had before when they were constantly being sued for violating 

the law. The courts cannot simply condone statutory violations brought to their attention.

The Chamber report also alleges:

‘‘This process also allows agencies to avoid the normal protections built into the 

rulemaking process—review by the Office of Management and Budget and the 

public, and compliance with executive orders—at the critical moment when the 

agency’s new obligation is created.’’

This is simply not true. Agencies must comply with the law as written by Congress, including the requirements for notice and comment rulemaking provided in 

the APA (5 U.S.C. § 553). Courts must reverse agency actions that are contrary to 

law or undertaken without observance of legally required procedures (5 U.S.C. 

§ 706). While agencies can commit to a schedule for performing their mandatory duties, they cannot settle litigation by making commitments concerning the substance 

of final regulations they will issue. Agencies have inherent authority to reconsider 

prior regulatory decisions so long as they have a reasoned basis for doing so. Motor 

Vehicle Mfrs. Ass’n v. State Farm Automobile In. Co., 463 U.S. 29, 56–57 (1983). 

Courts do not simply rubber stamp these agreements. A good example is Conservation Northwest v Harris, No. 11–35729 (April 25, 2013), where the Ninth Circuit recently rejected a consent decree on the ground that it made a substantive 

change to the Survey and Management Standard of a the Northwest Forest Plan 

without going through the proper rulemaking process for making such a change. 

IV. CONCLUSION

Congress has included citizen suits in a large number of environmental statutes 

including the ESA. Experience has shown that such suits are a critical component 

of the implementation of these laws.12 These suits hold agencies accountable to the 

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13See FWS Endangered Species Program http://www.fws.gov/endangered/. 

rule of law and to the will of congress. There is no merit to the charge that such 

suits are collusive. There are many safeguards built into the judicial process including the requirement that plaintiffs prove standing to even bring the case, the requirement that courts must approve settlements after taking public comments into 

account, and the requirements of the APA regarding rulemaking procedures such 

as notice and comment and reasoned explanations for changes in policy. 

The success of the ESA depends on many things starting with adequate funding. 

As many commentators have noted, Congress needs to provide greater incentives to 

encourage habitat conservation. The agencies responsible for administering the Act, 

FWS and NOAA, have created a number of opportunities for tribes, states, local authorities and private parties to participate in the process. These include safe harbor 

agreements, no surprises guarantees, candidate conservation agreements, recovery 

credits and tax deductions, and conservation banking opportunities.13 Those who 

genuinely want to engage in conservation can find many ways of doing so. There 

may well be disagreements over what is actually needed for any particular species 

but decisions must ultimately be based on the best available science. 

Thank you. I would be happy to answer any questions. 

The CHAIRMAN. Thank you very much for your testimony. 

And next I will recognize Mr. Steve Ferrell, who is the wildlife 

and endangered species policy advisor to the Wyoming Governor, 

Matt Mead. You are recognized. 

STATEMENT OF STEVE FERRELL, WILDLIFE AND ENDANGERED SPECIES POLICY ADVISOR, STATE OF WYOMING, 

CODY, WYOMING 

Mr. FERRELL. Thank you, Mr. Chairman, members of the Committee. Before I start, Governor Mead asked that I share with you 

his appreciation for the efforts of former Secretary Salazar and 

Fish and Wildlife Director, Dan Ashe, for their efforts in helping 

to delist wolves in Wyoming. Now, to my testimony. 

States are unquestionably qualified to be partners in implementing the ESA. States have extensive expertise in science-based 

wildlife management principles and the application of public policy. 

Further, States are significantly affected by the ESA, including 

their ability to maintain their economies and the natural resources. 

To highlight our expertise, I will describe two success stories in 

Wyoming. 

First, wolves. By the end of this year, the wolf population in Wyoming will have exceeded all recovery goals for 12 consecutive 

years. By anyone’s standards, that should be a success story. Yet 

today, Wyoming remains involved in litigation contesting the 

delisting of wolves. Since delisting in Wyoming 9 months ago, 3 

separate lawsuits have been filed from a total of 14 organizations. 

Litigation has been a constant occurrence regarding wolves since 

their first delisting in 2008. 

To achieve our most recent delisting, Wyoming revised its regulatory framework. Among other features, our plan commits to enhanced population goals, facilitates natural dispersal, improves certainty in protecting wolves, and commits to genetic connectivity. 

The latter feature is unique to Wyoming’s plan. It includes extensive genetic monitoring and commits to further plan revisions if 

State management is not achieving its goal. 

Next, the Sage Grouse Task Force. Wyoming is a leader in sage 

grouse conservation. Since 2008, our core area strategy established 

34

by three executive orders has twice been endorsed by the Service 

as a sound framework to avoid listing sage grouse. The task force 

is the product of a meeting co-chaired by Governor Mead and Secretary Salazar in 2011. It is comprised of Governors’ representatives of the 11 sage grouse States and the executives of 4 Federal 

agencies. The task force is charged with developing a near-term 

management plan with a primary focus on policy. 

The task force represents a new model that is heralded by many 

as a unique approach to the conservation of a candidate species. 

The combined effort of the 11 States and 4 Federal agencies is impressive. When leveraged back at home with the contributions of 

industries, NGO’s, and land owners, the combined effort is staggering. Time will tell whether it will be successful. 

For State and private contributors, success will be measured by 

the attainment of its goal: a not-warranted finding for sage grouse 

in 2015. States and industries need certainty that this model has 

a chance to succeed to invest so heavily in it. If this effort fails to 

achieve its goal, and sage grouse are listed in spite of the conservation taking place, I wonder if this model will be attempted again. 

In my written testimony I offer ideas on how Federal statutes 

and policies could be changed to improve the implementation of the 

ESA. I want to touch briefly on two. 

One of the most urgent needs is to make the ESA decisions less 

susceptible to litigation. Changes to the ESA and the Equal Access 

to Justice Act that reduce the financial incentive to litigate would 

make the ESA implementation more efficient and transparent. In 

Wyoming, reduced incentives to litigate would have improved the 

effectiveness of implementing the ESA for wolves, grizzly bears, 

and others. Despite these amazing success stories, litigation continues with no finality. These subjects are repeatedly litigated and 

filed simultaneously in multiple jurisdictions, making them costly 

to defend. Legislation that requires wealthy litigants to pay their 

own way would help limit litigation to cases involving species in 

jeopardy, and not ones where litigants merely disagree with the 

delisting decision. 

Last, climate change. Climate change is increasingly cited as a 

factor to list species using models to predict the effect of climate 

change on a species status. It is reasonable to expect that the accuracy of these models diminish the further into the future that they 

are applied. There are examples where species are proposed for 

listing, only because of predictions made by climate change models. 

In these examples, the species is currently robust in number and 

distribution, and no other threats affect their status. This begs the 

question of how far into the future predictive models should be applied beyond the listing decision, and how much consideration 

should be given to current conditions in making those decisions 

now. 

Is it reasonable to remove a species from State trust status 10, 

50, or even 100 years prior to its showing the predicted effect of 

climate change? Federal policy needs to define foreseeable future 

and develop criteria to consider the uncertainty of climate change 

models. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Ferrell follows:]

35

Statement of Steve Ferrell, Wildlife and Endangered Species

Policy Advisor, State of Wyoming, Cody, Wyoming

Mr. Chairman, Members of the Committee, my name is Steve Ferrell. I am a Policy Advisor to Governor Mead in Wyoming. My primary responsibility is wildlife and 

endangered species issues. It is an honor to offer you my thoughts on the topic of 

today’s hearing and answer your questions. I intend to focus on state led conservation opportunities relative to the Endangered Species Act (ESA), offer suggestions 

for improving implementation of the ESA, and report on a promising ongoing effort 

regarding the topic. 

States should be considered full and equal partners in implementing the ESA. 

Listing decisions under the ESA typically result in transferring the management jurisdiction for a species between state and federal authority. Full state involvement 

should be expected since the states either were the managers prior to the listing 

decision or will become the managers after the delisting decision. States are unquestionably qualified to be effective partners in the implementation of the ESA. States 

have extensive experience and expertise in science based wildlife management principles and the application of public policy in managing wildlife as a public asset. 

States are significantly affected by the ESA including their ability to develop and 

maintain their economies and natural resources. States should be afforded every opportunity to provide input to laws, regulations and policies in implementing the 

ESA. 

To highlight this expertise, let me briefly describe two success stories in Wyoming. 

Wolves in Wyoming

I am proud to say that wolves in Wyoming have exceeded their recovery goals for 

11 consecutive years. 

Wolves were likely eradicated from the lower 48 states by 1930. In 1974 gray 

wolves in the lower 48 states were listed as endangered. For the 50 years preceding 

1986 there had been no detection of wolf reproduction in the U.S. portion of the 

Rocky Mountains. In 1986 a den was discovered near the Canadian border in Glacier National Park. In 1987 the wolf recovery plan for the Northern Rocky Mountain 

Region established a recovery goal of 300 wolves and 30 breeding pairs to be equally 

allocated among the states of Wyoming, Idaho and Montana. In 1995 and 1996 a 

total of 31 wolves were reintroduced to Yellowstone National Park. Three years later 

Yellowstone supported 112 wolves and 6 packs. In 2001, just 6 years after reintroduction, the wolf population in the Northern Rocky Mountains exceeded recovery 

goals. 

By the end of 2013 the wolf population in Wyoming will have exceeded the numerical, distributional, and temporal recovery goals for 12 consecutive years. By anyone’s standards that should be a success story. Yet today Wyoming remains embroiled in litigation contesting the delisting of wolves. Since delisting in Wyoming 

nine months ago, three separate lawsuits have been filed by a total of 14 organizations. Litigation has been a constant occurrence since the first delisting rule in 

2008. At that time the wolf population in the Northern Rockies exceeded the recovery goal for total numbers by more than 5 times and for breeding pairs by more 

than 3 times. Wolves have been delisted in Wyoming twice since 2008 and both 

delisting decisions have been challenged in court. 

In 2011 Wyoming began the process of revising its statutes, rules and management plan addressing wolves. Among other features our revised regulatory mechanisms commit to enhanced population goals, add protections to facilitate natural dispersal of wolves, delete features from previous regulations to improve certainty in 

protecting wolves, and commit to successful genetic interchange between wolf populations. The latter feature is unique to Wyoming’s plan. It includes extensive genetic 

monitoring and commits to further plan revisions if state management is a factor 

in not meeting genetic connectivity goals. Wyoming’s plan was twice subjected to 

peer review with favorable results. Wolves were removed from the protections of the 

ESA in September 2012. 

The Sage-grouse Task Force

Wyoming is a recognized leader in sage-grouse conservation. In 2008 then-Governor Freudenthal issued an executive order establishing the core area strategy for 

sage-grouse conservation in the state. The U.S. Fish and Wildlife Service (the Service) endorsed the executive order as a sound framework for a policy to conserve 

sage-grouse populations and achieve the goal to preclude listing sage-grouse. In 

2011 Governor Mead issued an updated version of the executive order which has 

been similarly endorsed by the Service. 

In December 2011 Governor Mead and then-Secretary Salazar co-hosted a meeting in Cheyenne among the Governors’ representatives of the 11 sage-grouse states 

36

and the executives of four federal agencies (the Service, the Bureau of Land Management, the Forest Service and the Natural Resources Conservation Service) to discuss a coordinated effort that might ensure sage-grouse would not require the protections of the ESA by 2015. The Sage-Grouse Task Force is a product of that meeting. Co-chaired by the Governors of Wyoming and Colorado, and the Director of the 

Bureau of Land Management (BLM), the Task Force is charged with developing a 

near-term comprehensive management plan with a primary focus on policy. The 

Task Force has served as a support group for state planning efforts across the species range to improve regulatory mechanisms. It also serves as a coordination forum 

for BLM and Forest Service sage-grouse planning efforts, and the remarkable 

achievements of the Natural Resource Conservation Service’s (NRCS) Sage Grouse 

Initiative. The Task Force has investigated opportunities for improvement in federal 

fire policy, invasive species policy, and state and privately led conservation efforts. 

The group is presently developing a list of metrics that best quantify the conservation value of management efforts and a database to document those efforts. 

The Task Force represents a new model that is heralded by many as a unique 

approach to the range-wide conservation of a candidate species. The combined effort 

of the 11 sage-grouse states and four federal agencies with jurisdiction for sagegrouse is impressive. When these efforts are leveraged back at home with the contributions of industries, NGOs, and landowners the combined effort is staggering. 

Time will tell if the efforts will be successful. For state and private contributors, 

success will be measured by the attainment of the goal—a ‘‘not warranted’’ finding 

for sage-grouse in 2015. States and industry need certainty that this model has a 

chance at succeeding to invest so heavily in it. If this effort fails to achieve its goal 

and sage-grouse are listed in spite of the range-wide conservation taking place, I 

wonder if this model will be attempted again. The amount of time and resources 

invested by Wyoming and other states on species conservation is tremendous, but 

our incentive to do so is harmed by the uncertainty created by an outdated ESA, 

and repeated litigation that places arbitrary deadlines on listing decisions. One 

thing is certain, the federal government absolutely needs the states’ active involvement in species conservation, but we are travelling a path that will eventually back 

states into a corner, and leave the federal government to fend for itself for a program that is already overwhelming. 

Improving implementation of the ESA through Legislation.

The states recognize that comprehensive reform of the ESA is not a likely outcome 

in the near future. However, that does not mean that implementation of the ESA 

cannot be improved in ways that benefit species and people. Some updates to the 

ESA itself, agency practices, and other related laws ought to be addressed. 

One of the most urgent needs is to make ESA-related decisions less susceptible 

to litigation. Changes to the ESA and the Equal Access to Justice Act would cause 

significant improvement in ESA implementation. For example, litigation appears to 

be a business model for some organizations today. Changing these laws to reduce 

the financial incentive to litigate would make the implementation of the ESA more 

efficient, and more transparent. States and other interested stakeholders need and 

deserve a seat at the table when it comes to ESA management. Litigation moves 

these decisions out of the public realm, and into the very private confines of a courtroom. 

In Wyoming, reduced incentives to litigate would have addressed the ineffectiveness of implementing the ESA for wolves, grizzly bears, and others. Despite the 

amazing recovery success story for these animals, litigation continues and allows no 

finality in managing these species. These subjects are repeatedly litigated and filed 

simultaneously in multiple jurisdictions making them very costly to defend. 

The most active litigants (states and non-government organizations) have the resources to litigate without the financial incentives caused by awarding attorney fees 

to the prevailing party. Legislation that requires wealthy litigants to pay their own 

way would help limit the onslaught of litigation to only the most substantive and 

deserving cases where real harm to species is shown, not ones where the litigants 

merely disagree with the decisions of the Service. 

Another example for improving ESA implementation would be requiring ESA litigation to be filed initially in the federal court of appeals in the circuit that is home 

to the Service’s Regional Office that has primacy for the species in question. This 

would speed up litigation by removing the federal district courts from the process, 

reduce ‘‘forum shopping’’ by plaintiffs, and allow the decision to be made in the 

home circuit. 

Increased scrutiny of the process and outcomes of litigation and the suggested 

changes to these laws would have a positive effect on the implementation of the 

ESA. 

37

Opportunities for Policy Revisions.

There are several policy revisions that could improve the implementation of the 

ESA. Some of these may benefit from changes in the statute. Some may require new 

statutory authority to enable new policies or make them more defensible in litigation. Most would not require changes in statutes. 

Recovery goals. Federal policy should require the identification of recovery goals 

in final rulemaking. The recovery criteria should include a clear description of the 

required population size, population trend, or other relevant criteria describing recovery. States should play an active role in developing the recovery goals. 

Delegation of authority. Federal policy should enhance the delegation of authority 

for the management of listed species to willing state partners. There are several examples where states have voluntarily accepted this role. Shared authority could also 

be enhanced through formal agreements, which spell out a larger role for states in 

coordinating ESA implementation. 

Peer Reviews. The ESA requires that the Service base decisions on the best 

science. Yet wildlife is regarded by the states as a public trust asset. Accordingly, 

states manage species under their jurisdiction with broad public participation, considering socio-economic objectives as well as the scientific principles of wildlife management. As such, wildlife management under state jurisdiction includes science 

and public policy. The Service has as a matter of policy made extensive use of scientific peer reviews in developing management plans. The agency’s response to 

these reviews can create unrealistic consequences. The states should be equal partners in designing peer reviews, selecting reviewers, choosing the scope of the review, 

and formulating a response. Reviews should be broadened to include public policy 

issues as well as scientific merit. This would result in management decisions that 

balance public policy needs with species recovery needs. 

Define Significant Portion of the Range (SPR). It is important to recognize that 

regulatory mechanisms are the product of states and counties and may vary across 

jurisdictional boundaries. Favorable listing decisions, experimental, nonessential 

population designations and 4d rules have provided significant incentives for a regulatory jurisdiction to implement conservation measures. 

A common argument in ESA litigation is that the inadequacy of existing regulatory mechanisms requires a listing or relisting. Some court cases have held that 

differing degrees of protection cannot be based on jurisdictional boundaries. In response to these cases, in 2011 the Service withdrew its existing policy interpreting 

the term ‘‘significant portion of the range’’ and published a new draft policy. The 

new draft eliminates several important incentives for the conservation of listed species. Listing decisions must be determined based on the collective effect of regulatory mechanisms across a species’ range. This diminishes the certainty for reward 

if a regulatory authority invests in conservation. 

The draft SPR policy requires a species to be listed as endangered range-wide if 

conditions warrant endangered status in a significant portion of the range. This is 

true even if evidence simultaneously supports a determination that the species is 

only threatened throughout its entire range. Consequently, the draft prevents the 

use of conservation tools commonly used to recover threatened species such as experimental nonessential (10j) designations and special (4d) rules which cannot be 

applied to the recovery of endangered species. 

The final policy interpreting SPR needs to preserve the rewards that states and 

counties currently realize for investing in conservation. Further, the final policy 

should not assign endangered status to portions of the range where the population 

is threatened so that conservation tools that are only available for managing threatened populations are not lost. If these provisions are not restored the conservation 

of imperiled species may be diminished. 

Climate Change and Foreseeable Future. Climate change is increasingly cited as 

a factor in deciding to list species under the ESA. Status reviews use models to predict the effect of climate change on a species’ status. It is reasonable to expect that 

the accuracy of these models diminish the farther into the future that they are applied. There are examples where species are proposed for listing only because of 

long-term predictions made by climate change models. In these examples the species 

is currently considered robust in number and distribution and there are no other 

current threats that affect the species’ status well into the future. Listing these species takes them from state trust status and places them in federal jurisdiction. This 

begs the questions of how far into the future predictive models should be applied 

beyond the listing decision, and how much consideration should be given to current 

conditions in making those decisions now? Is it reasonable to remove a species from 

state trust status 5, 10, 50 or 100 years prior to their status showing the predicted 

effect of climate change? Federal policy needs to define ‘‘foreseeable future’’ and deVerDate 0ct 09 2002 09:43 Nov 26, 2013 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 Y:\02FISH~1\02MY16\81318.TXT MARK
38

velop criteria that consider the uncertainty of climate change models at various 

times into the future. 

Thank you for the opportunity to share my thoughts on this important subject. 

The CHAIRMAN. Thank you very much, Mr. Ferrell, for your testimony. 

And for purposes of more of an introduction, I recognize the gentleman from Colorado, Mr. Tipton. 

Mr. TIPTON. Thank you, Mr. Chairman. I would like to be able 

to introduce a friend of mine, Tom Jankovsky, a commissioner out 

of Garfield County in Colorado, for being here today to be able to 

testify. We could have, I guess, gotten a carpool and come back. We 

were together just a few days ago. 

I appreciate him traveling from Colorado to be able to provide a 

local perspective on the work being done to locally conserve and 

protect endangered species, and that unique perspective out of Garfield County. 

Tom, thank you for being here in regards to dealing with the 

sage grouse issues which are impacting the greater West. 

Thank you, Mr. Chairman, I yield back. 

The CHAIRMAN. Mr. Jankovsky, you are recognized for 5 minutes. 

STATEMENT OF TOM JANKOVSKY, COMMISSIONER, GARFIELD 

COUNTY, GLENWOOD SPRINGS, COLORADO 

Mr. JANKOVSKY. Thank you, Mr. Chairman and honorable members of the Committee. I am from Garfield County, Colorado. And 

also with me today is Dr. Rob Ramey, President of Wildlife Science 

International, and a member of the Garfield County Sage Grouse 

Team. I am here to discuss why local plans are more effective for 

endangered species conservation, through our county’s experience, 

with the potential listing of the Greater Sage Grouse and the litigious nature of the ESA. 

Garfield County worked with the BLM on the Northwest Colorado Sage Grouse EIS as a cooperating agency, and is one of nine 

Colorado counties that have sage grouse habitat managed by five 

local plans. In these cooperating agency meetings, we realize local 

plans are not being considered. Because we have a local plan, we 

engage the BLM in the coordination process. Congress set forth the 

coordination process through FLPMA, whereby the Secretary shall 

‘‘keep apprised of local plans, give consideration to those plans, 

meaningfully involve local governments, resolve inconsistencies, 

and make Federal plans consistent with local plans.’’

Our first two coordination meetings covered the significant differences between our local plan and the policies being directed 

through the BLM national technical team report. Our primary concern is that the policies the BLM is attempting to put into place 

do not fit our unique topography, and will fail, and will harm our 

local economy. The studies for the NTT report were primarily from 

Central Wyoming, with miles of rolling sage brush, while our topography and vegetation is quite unique, characterized by high plateaus with sage brush at the ridge tops, steep drops to drainages 

in valley floors, with a patchwork of sage brush, conifer, aspen, and 

pinyon juniper forests. 

39

The map used in the EIS covers 220,000 acres of private and 

Federal lands in our county. We questioned this map, and were 

told the mapping was not the responsibility of the BLM, but was 

provided by Colorado Parks and Wildlife, and that our plan was 

not acceptable, because it was voluntary, with no regulatory assurance. We met with CPW, who stated the map was prepared at the 

50,000-foot view. And that was concerning, since this map is the 

foundation for the policies being developed in the EIS. We then 

hired Dr. Ramey and mapping experts to evaluate the basis of the 

science used in the NTT report, and for the creation of the CPW 

habitat map. We found the map was not reproducible. Lost my 

place, here. 

The net result reduced the suitable habitat from 220,000 acres 

to 28,000 acres. With the refined mapping and the best-available 

science, we adopted the Garfield County Greater Sage Grouse Conservation Plan that provides private and public land owners with 

policies that are fit to the county’s unique landscape. The plan retains regulatory assurance by mandating our policies on Federal 

land. It places the county at the center of decision making through 

coordination. This allows all the different Federal, State, and local 

interests to come together through one comprehensive plan, in the 

spirit of cooperation, thereby avoiding legal conflict. 

In our third coordination meeting with the BLM, U.S. Fish and 

Wildlife Service, and CPW, we presented our plan to discuss and 

resolve inconsistencies with the NTT report. Last, we met with 

CPW to validate our habitat mapping, which revealed a high correlation of accuracy. The intent is to work with CPW to amend this 

CPW map that will ultimately be used in the final BLM EIS. 

I would like to take this opportunity to request assistance from 

this Committee. First, the Service has withheld valuable data that 

supports a warranted listing. We only wish to verify their data, as 

required under the Information Quality Act. We would appreciate 

this Committee’s interceding on our behalf to obtain this data. 

Second, we would request that the BLM abide by FLPMA, their 

own statutes and regulations, to resolve policy conflicts at the local 

level. Then, not only would litigation be avoided, but solutions 

would be put in place that truly benefit the sage grouse. 

Thank you for your time and assistance in this matter, and I 

would be happy to answer any questions. Thank you. 

[The prepared statement of Mr. Jankovsky follows:]

Statement of Tom Jankovsky, Commissioner, Garfield County, Colorado

Thank you Mr. Chairman and members of the committee. 

My name is Tom Jankovsky, County Commissioner from Garfield County, Colorado. Also with me today is Dr. Rob Ramey, President of Wildlife Science International and a member of the Garfield County Greater Sage Grouse team. 

I am here to discuss why local plans are more effective for endangered species 

conservation through our County’s experience with the potential listing of the Greater Sage Grouse and its habitat. 

Garfield County worked with the BLM on the NW Colorado Greater Sage Grouse 

Environmental Impact Statement (EIS) as a cooperating agency as one of nine counties that have Sage Grouse habitat managed by five local plans. 

In these cooperating agency meetings we realized local plans were not being considered. Because we have a local plan, we engaged the BLM in the Coordination 

process. Congress set forth the coordination process through the Federal Land Policy 

Management Act (FLPMA) whereby the Secretary of the Interior shall: keep apprised of local plans; give consideration to those plans; meaningfully involve local 

40

governments; resolve inconsistencies; and, make Federal plans consistent with local 

plans. 

Our first two Coordination meetings covered the Coordination process and significant differences between our local plan and the policies being directed through the 

BLM’s National Technical Team (NTT) Report. Our primary concern is that the policies the BLM is attempting to put in place do not fit our unique topography and 

will fail, destroy our local economy and create the need for litigation. 

The studies for the NTT Report were primarily from central Wyoming with miles 

of rolling sage brush while our topography and vegetation is quite unique characterized by high plateaus with sage brush at the ridge tops, steep drops to drainages 

and valley floors, with a patchwork of sage brush, conifer, aspen and pinion-juniper 

forests. (See Attachment 1: Topography Differences) As a result, conservation measures must adapt to the unique habitat through our local plan. 

The map used in the EIS covers 220,000 acres of private and federal lands in our 

county. We questioned this map and were told that the mapping was not the responsibility of the BLM, but was provided by Colorado Parks & Wildlife (CPW) and that 

our plan was not acceptable because it was voluntary with no regulatory assurance. 

We met with CPW who stated the map was prepared at a 50,000 ft. view. That 

was concerning since the map is the foundation for the policies being developed in 

the EIS. 

We then hired Dr. Ramey and mapping experts to evaluate the basis of the 

science used in the NTT Report and for the creation of the CPW habitat map. We 

found the map was based on very coarse vegetation data, a subjective occupied 

range map, and a four-mile lek buffer that assumes large expanses of intact habitat. 

Ultimately, this map was not reproducible. So we prepared our own map based 

on CPW criteria and highly accurate vegetation data. The net result reduced suitable habitat from 220,000 acres to 28,000 acres. (See Attachment 2: Suitable Habitat 

Mapping Differences)

With the refined mapping and best available science, we adopted the Garfield 

County GSG Conservation Plan that provides private and public land owners with 

land management principles, policies and BMPs that are tailor-fit to the County’s 

unique landscape and habitat characteristics. 

This plan retains regulatory assurance by mandating our policies on federal land. 

It is designed with an adaptive management approach and places the County at the 

center of decision making through Coordination. (See Attachment 3: Coordination 

Diagram) This allows all of the different federal, state and local interests to come 

together through one comprehensive plan in the spirit of cooperation thereby avoiding legal conflict. It is critical that agency plans be consistent with local plans. 

In our third Coordination meeting with the BLM, U.S. Fish & Wildlife Service 

(the Service), and CPW, we presented our plan to specifically discuss and resolve 

inconsistencies with the NTT Report. Lastly, we met with CPW to validate our habitat mapping which revealed a high correlation of accuracy. The intent is to work 

with CPW to amend the CPW map that will ultimately be used in the final BLM 

EIS. 

Garfield County supports the Secretary’s specific direction to the BLM that requires them to address ‘‘local ecological site variability’’ for regional/sub-regional 

plans. (See Attachment 4: Instructional memorandum 2012–044) Additionally, 

FLPMA requires the BLM to coordinate their efforts with local plans. 

I would like to take this opportunity to request assistance from this Committee. 

First, the Service has withheld valuable data that supports a warranted listing. We 

only wish to verify their data as required under the Information Quality Act. We 

would appreciate this Committee’s interceding on our behalf to obtain this data as 

soon as possible. 

Second, we ask that you direct the Secretary of Interior to coordinate fully with 

local governments to ensure consistency between local and federal plans, more specifically local sage-grouse plans. Finally, we simply request the BLM abide by 

FLPMA and their own statutes and regulations to resolve policy conflicts at the 

local level. Then, not only would litigation be avoided, but solutions would be put 

in place that truly benefit the sage-grouse. 

Thank you for your time and assistance in this matter. We appreciate this opportunity and would be more than happy to answer any questions this Committee may 

have.

41


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42

Attachment 4: BLM Instructional Memorandum 2012–044

UNITED STATES DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

WASHINGTON, D.C. 20240

http://www.blm.gov/

December 27, 2011

In Reply Refer To: 

1110 (230/300) P 

EMS TRANSMISSION 12/27/2011

Instruction Memorandum No. 2012–044 Expires: 09/30/2013

To: All Field Officials 

From: Director 

Subject: BLM National Greater Sage-Grouse Land Use Planning Strategy 

Program Areas: All Programs.

Purpose: This Instruction Memorandum (IM) provides direction to the Bureau of 

Land Management (BLM) for considering Greater Sage-Grouse conservation measures identified in the Sage-Grouse National Technical Team’s—A Report on National Greater Sage-Grouse Conservation Measures (Attachment 1) during the land 

use planning process that is now underway in accordance with the 2011 National 

Greater Sage-Grouse Planning Strategy (Attachment 2). 

This IM supplements direction for Greater Sage-Grouse contained in WO IM No. 

2010–071 (Gunnison and Greater Sage-Grouse Management Guidelines for Energy 

Development), the BLM’s 2004 National Sage-Grouse Habitat Conservation Strategy

and is a component of the 2011 National Greater Sage-Grouse Planning Strategy

(Attachment 2). It is also consistent with WO IM No. 2011–138 (Sage-Grouse Conservation Related to Wildland Fire and Fuels Management). 

In March 2010, the U.S. Fish and Wildlife Service (FWS) published its decision 

on the petition to list the Greater Sage-Grouse as ‘‘Warranted but Precluded.’’ 75 

Fed. Reg. 13910 (March 23, 2010). Over 50 percent of the Greater Sage-Grouse habitat is located on BLM-managed lands. In its ‘‘warranted but precluded’’ listing decision, FWS concluded that existing regulatory mechanisms, defined as ‘specific direction regarding sage-grouse habitat, conservation, or management’ in the BLM’s 


81318.011.eps
43

Land Use Plans (LUPs), were inadequate to protect the species. The FWS is scheduled to make a new listing decision in Fiscal Year (FY) 2015. 

The BLM has 68 land use planning units which contain Greater Sage-Grouse 

habitat. Based on the identified threats to the Greater Sage-Grouse and the FWS 

timeline for making a listing decision on this species, the BLM needs to incorporate 

explicit objectives and desired habitat conditions, management actions, and areawide use restrictions into LUPs by the end of FY 2014. The BLM’s objective is to 

conserve sage-grouse and its habitat and potentially avoid an ESA listing. 

In August 2011, the BLM convened the Sage-Grouse National Technical Team 

(NTT), which brought together resource specialists and scientists from the BLM, 

State Fish and Wildlife Agencies, the FWS, the Natural Resources Conservation 

Service (NRCS), and the U.S. Geological Survey (USGS). The NTT met in Denver, 

Colorado in August and September 2011, and in Phoenix, Arizona in December 

2011, and developed a series of science-based conservation measures to be considered and analyzed through the land use planning process. This IM provides direction to the BLM on how to consider these conservation measures in the land use 

planning process. 

In order to be effective in our ability to conserve Greater Sage-Grouse and their 

habitat, the BLM will continue to work with its partners including: the Western Association of Fish and Wildlife Agencies (WAFWA), FWS, USGS, NRCS, U.S. Forest 

Service (USFS), and Farm Services Agency (FSA) within the framework of the Sagebrush Memorandum of Understanding (2008) and the Greater Sage-Grouse Comprehensive Conservation Strategy (2006). 

Policy/Action: The BLM must consider all applicable conservation measures 

when revising or amending its RMPs in Greater Sage Grouse habitat. The conservation measures developed by the NTT and contained in Attachment 1 must be considered and analyzed, as appropriate, through the land use planning process by all 

BLM State and Field Offices that contain occupied Greater Sage-Grouse habitat. 

While these conservation measures are range-wide in scale, it is expected that at 

the regional and sub-regional planning scales there may be some adjustments of 

these conservation measures in order to address local ecological site variability. Regardless, these conservation measures must be subjected to a hard look analysis as 

part of the planning and NEPA processes. 

This means that a reasonable range of conservation measures must be considered 

in the land use planning alternatives. As appropriate, the conservation measures 

must be considered and incorporated into at least one alternative in the land use 

planning process. Records of Decision (ROD) are expected to be completed for all 

such plans by the end of FY 2014. This is necessary to ensure the BLM has adequate regulatory mechanisms in its land use plans for consideration by FWS as part 

of its anticipated 2015 listing decision. 

When considering the conservation measures in Attachment 1 through the land 

use planning process, BLM offices should ensure that implementation of any of the 

measures is consistent with applicable statute and regulation. Where inconsistencies 

arise, BLM offices should consider the conservation measure(s) to the fullest extent 

consistent with such statute and regulation. 

The NTT-developed conservation measures were derived from goals and objectives 

developed by the NTT and included in Attachment 1. These goals and objectives are 

a guiding philosophy that should inform the goals and objectives developed for individual land use plans. However, it is anticipated that individual plans may develop 

goals and objectives that differ and are specific to individual planning areas. 

Through the land use planning process, the BLM will refine Preliminary Priority 

Habitat and Preliminary General Habitat data (defined below) to: (1) identify Priority Habitat and analyze actions within Priority Habitat Areas to conserve Greater 

Sage-Grouse habitat functionality, or where possible, improve habitat functionality, 

and (2) identify General Habitat Areas and analyze actions within General Habitat 

Areas that provide for major life history function (e.g., breeding, migration, or winter survival) in order to maintain genetic diversity needed for sustainable Greater 

Sage-Grouse populations. Any adjustments to the NTT recommended conservation 

measures at the local level are still expected to meet the criteria for Priority and 

General Habitat Areas. 

Preliminary Priority Habitat (PPH): Areas that have been identified as having the 

highest conservation value to maintaining sustainable Greater Sage-Grouse populations. These areas would include breeding, late brood-rearing, and winter concentration areas. These areas have been/are being identified by the BLM in coordination with respective state wildlife agencies. 

Preliminary General Habitat (PGH): Areas of occupied seasonal or year-round 

habitat outside of priority habitat. These areas have been/are being identified by the 

BLM in coordination with respective state wildlife agencies. 

44

PPH and PGH data and maps have been/are being developed by the BLM through 

a collaborative effort between the BLM and the respective state wildlife agency, and 

are stored at the National Operations Center (NOC). These science-based maps were 

developed using the best available data and may change as new information becomes available. Such changes would be science-based and coordinated with the 

state wildlife agencies so that the resulting delimitation of PPH and PGH provides 

for sustainable populations. In those instances where the BLM State Offices have 

not completed this delineation, the Breeding Bird Density maps developed by 

Doherty 2010[1] As LUPs are amended or revised, the BLM State Offices will be 

responsible for coordinating with the NOC to use the newest delineation of PPH and 

PGH. To access the PPH and PGH data, please use the following link: //blm/dfs/loc/

EGIS/OC/Wildlife/Transfers/GREATER_SAGE_GROUSE_GIS_DATA. will be used. 

The NOC will establish the process for updating files to include the latest PPH and 

PGH delineations for each state. This information will assist in applying the conservation measures identified in Attachment 1 below. 

Timeframe: This IM is effective immediately and will remain in effect until 

LUPs are revised or amended by the end of FY 2014. 

Budget Impact: This IM will result in additional costs for coordination, NEPA 

review, planning, implementation, and monitoring. 

Background: Following a full status review in 2005, the FWS determined that 

the Greater Sage Grouse was ‘‘not warranted’’ for protection. Decision documents in 

support of that determination noted the need to continue and/or expand all efforts 

to conserve sage-grouse and their habitats. As a result of litigation challenging the 

2005 determination, the FWS revisited the determination and concluded in March 

2010 that the listing of the Greater Sage-Grouse is warranted but precluded by 

higher priority listing actions. 

In November 2004, the BLM published the National Sage-Grouse Habitat Conservation Strategy. The BLM National Strategy emphasizes partnerships in conserving Greater Sage-Grouse habitat through consultation, cooperation, and communication with WAFWA, FWS, NRCS, USFS, USGS, state fish and wildlife agencies, 

local sage-grouse working groups, and various other public and private partners. In 

addition, the Strategy set goals and objectives, assembled guidance and resource materials, and provided comprehensive management direction for the BLM’s contributions to the ongoing multi-state sage-grouse conservation effort. 

In July 2011, the BLM announced its National Greater Sage-Grouse Planning 

Strategy (Attachment 2). The goal of the Strategy and this IM is to review existing 

regulatory mechanisms and to implement new or revised regulatory mechanisms 

through the land use planning process to conserve and restore the Greater SageGrouse and their habitat. The Gunnison Sage-Grouse, bi-state population in California and Nevada and the Washington State distinct population segments of the 

Greater Sage-Grouse will be addressed through other policies and planning efforts. 

Manual/Handbook Sections Affected: None.

Coordination: This IM was coordinated with the office of National Landscape 

Conservation System and Community Partnership (WO–170), Assistant Director, 

Renewable Resources and Planning, (WO–200), Minerals and Realty Management 

(WO–300), Fire and Aviation (WO–400), BLM State Offices, FWS and state fish and 

wildlife agencies. 

Contact: State Directors may direct questions or concerns to Edwin Roberson, Assistant Director, Renewable Resources and Planning (WO–200) at 202–208–4896 or 

edwin_roberson@blm.gov; and Michael D. Nedd, Assistant Director, Minerals and 

Realty Management (WO–300) at 202–208–4201 or mike_nedd@blm.gov. 

Signed by: Authenticated by: 

Mike Pool Ambyr Fowler 

Acting, Director Division of IRM Governance, WO–560

Attachment 5: Key differences that make the Garfield County Greater Sage 

Grouse Plan a more effective conservation tool than those proposed by federal agencies. 

High-resolution habitat mapping

The habitat mapping provided by State and Federal agencies in 2012 for Greater 

Sage-Grouse in the Plan Area was at a landscape level that did not accurately address the unique topography of the Roan Plateau, or provide planning information 

at resolution accurate enough for County to use in the Plan, and for relevant landuse planning activities potentially occurring within the Plan area, including protection of sage grouse habitat. Because of the significant implications on land use and 

ongoing land management, the Board of County Commissioners deemed that most 

accurate delineation of habitat was deemed necessary. This habitat mapping process 

45

followed the latest and most relevant peer-reviewed habitat mapping process available for mapping large and diverse areas, using the highest resolution data available (with a two-meter resolution, as compared to the one kilometer, landscape-level 

resolution used by the agencies). 

The sage-grouse habitat in Garfield County is naturally fragmented, as a result 

of topography and the patchy nature of sagebrush, non-sagebrush shrubs, meadows, 

aspen, and conifers in the Plan area. Expanses of contiguous sagebrush, necessary 

to support a large stable population (as described by the Fish and Wildlife Service 

in their 2010 candidate determination notice), do not exist in Garfield County. Additionally, the sage-grouse population inhabiting Garfield County is a peripheral population located on the far southeastern edge of the species range. As a result, the 

stewardship of the population requires detailed knowledge of local conditions, including accurate mapping of its habitat. 

Conservation measures are tailored to local circumstances

Rather than rely on one-size-fits-all regulatory prescriptions, such as four mile 

buffers and three percent anthropogenic disturbance thresholds proposed by the 

BLM’s National Technical Team (NTT), the County has taken a more effective approach: tailoring conservation measures to address specific threats to sage grouse 

and local circumstances that are unique to Garfield County (i.e. predation and a 

naturally fragmented habitat). The significance of this strategy to sage grouse conservation is that it allows for a more efficient allocation of conservation effort by 

focusing on threats that matter most in this sage grouse population. 

Voluntary conservation efforts on private land

In contrast to the NTT report, where the proposed conservation measures assume 

that private land management is inferior to federal land management, and requires 

a regulatory ‘‘command and control’’ approach, the Garfield County Plan recognizes 

and builds upon the importance of voluntary conservation by private landowners. 

The importance of voluntary conservation on private land is recognized by many 

scholars of the Endangered Species Act, including the current Deputy Assistant Secretary of Fish and Wildlife and Parks, Michael Bean, who has authored multiple 

papers on the subject. 

Annual Review and adaptive management

Recognizing that local governments can be more nimble than federal agencies, the 

Garfield County Plan includes a required annual coordination review with the federal and state agencies that have habitat or species responsibilities within the Plan 

Area. (A review may also be initiated based on important new information.) This 

review process will evaluate the availability and condition of habitats, direct and indirect impacts, conservation measures, policies and best management practices 

being implemented by each agency for their effectiveness and applicability to the 

Plan Area. Also incorporated in this coordination review is any new scientific information and, if warranted, modifications to the best management practices, policies, 

and conservation incentives within the Plan. The County will also initiate meetings 

with private property owners in the Plan Area for the purpose of analyzing their 

conservation efforts and effectiveness, as well as any new scientific data. The annual 

coordination review will ensure that Plan updates are timely, adaptive, and based 

on the best available scientific and commercial data. 

Consistency with the Information Quality Act

The Garfield County Plan ensures that sage-grouse habitat management decisions 

shall be made based on the best available scientific information that is applicable 

to sage-grouse habitat in Garfield County. The scientific information used will be 

consistent with standards of the Information Quality Act (Quality, Objectivity, Utility and Integrity), as determined by the County. In contrast to the interpretation 

of the Act by some federal agencies, this means that the data collected by state and 

federal agencies, or used in published scientific research relied upon by those agencies, must be provided to the County. 

The Garfield County Plan acknowledges that many of the purported ‘‘universal’’ 

negative impacts of fluid mineral development, an important economic activity on 

the Roan Plateau and Piceance Basin, are based upon outdated information and/or 

overstated. In fact, none of the studies cited in the NTT report can definitively point 

to an actual population decline rather than temporary displacement of sage grouse 

from areas immediately affected by current fluid mineral development. Instead, the 

extraction of fluid minerals in Garfield County (and increasingly elsewhere) is accomplished using increasingly advanced technologies, more efficient operations, 

avoidance of important habitat, more effective mitigation measures, and interim 

habitat restoration, than in the past. As a result, surface disturbances that potenVerDate 0ct 09 2002 09:43 Nov 26, 2013 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 Y:\02FISH~1\02MY16\81318.TXT MARK
46

tially affect sage grouse tend to be minimal and temporary in nature. The fast pace 

of these technological developments and more efficient operations has meant that 

the primary literature on the impacts of fluid mineral extraction on sage grouse in 

Wyoming is inconsistent with current practices used in Garfield County. It is anticipated that the more advanced technologies under development will continue to allow 

the efficient extraction of resources while further avoiding or minimizing impacts to 

sage grouse and other species. 

A balance of harms approach ensures responsible stewardship of natural and 

human resources in Garfield County 

In contrast to the approach proposed in the NTT report, that focuses solely on the 

welfare of sage grouse, the Garfield County Plan requires that the balance of impacts to other species and to human welfare must be weighed prior to approval and 

implementation. 

The CHAIRMAN. Thank you very much, Commissioner Jankovsky, 

for your testimony. And I just want to note for the record that—

and I want to thank all of you for your testimony. But, for the 

record, I did not hear anybody testify that they wanted to see a 

species go extinct. I think that ought to be well said. I think the 

issue that we are looking at is how best to preserve species. 

I will recognize myself for 5 minutes. 

And, Chairman Brigham, thank you very much for your testimony, and for that impressive showing of how hatchery fish work. 

However, in your testimony you point out that in Section 3 of the 

ESA, ESA specifically authorizes propagation as a means to conserve species. That is specifically in the Act. Yet there are some 

Federal bureaucrats and litigious groups that oppose any use of 

hatcheries. And you reference that in your testimony—and thank 

you for that. 

But what I want you to do specifically is to respond to the claim 

that I have heard, and I know you have heard, that hatchery fish 

are inferior, specifically in the Columbia and Snake River Basins. 

Could you respond to that? 

Ms. BRIGHAM. Well, thank you, Mr. Chairman. I think, you 

know, hatcheries are supposed to be there to mitigate for lost fish. 

And when we have raised the hatcheries in a way to put the fish 

back, they are not inferior. They are rebuilding the natural spawning stocks. And I will give you one example. 

In the late eighties or nineties we were putting fish back into the 

Umatilla River. And at that point in time we were doing a number 

of things at the same time. We were putting fish back into the 

Umatilla River, but we didn’t have enough water to attract the 

stocks back into the Umatilla River. And so, these stocks went all 

the way up to the Snake River. And it was always amazing to me 

that NOAA said—and Washington, basically, said—that these fish 

were inferior. And if these fish were inferior, I wondered why they 

traveled 200 miles further than they needed to go? So——

The CHAIRMAN. Thank you. You know, I am very much aware of 

when the Umatilla River was way down, and the difference of 

going up the Umatilla River and the Snake River is—it is eons difference. I agree with that. 

Because of my time, Mr. Powell, I want to ask you a question. 

In the appendix of your testimony, you say that there were more 

than three dozen species that were part of this large settlement. 

Did Interior consult with your State before agreeing to this settlement with these groups? 

47

Mr. POWELL. The Department of the Interior failed to go through 

and consult with neither our office, the State, nor our Department 

of Wildlife Conservation. 

The CHAIRMAN. Because of that, how will this affect some of your 

other programs that you have in place, as far as this is concerned? 

Mr. POWELL. Thank you, Mr. Chairman. Because of the timeframes that are set out as part of the master settlement, there is 

no giving resources. So we will have multiple instances of species 

coming up at the same time, and other times we will have lulls. 

So it is hard for us to allocate resources, both from a biological 

standpoint and from a policy standpoint, to go be able to deal with 

these individual situations. 

The CHAIRMAN. Good. Dr. Noss and Mr. Parenteau, I know that 

conservation biologists—and both of you identified yourselves as 

that—tend to oppose hatcheries to conserve species. Do you support 

any hatchery programs at all, Dr. Noss? 

Dr. NOSS. In my case, I do, actually. I think conservation is so 

complex that we need all the tools in the toolbox. And in certain 

cases, hatcheries can be important in helping to restock depleted 

fisheries. 

Now, the important thing to recognize—and it is—the paper that 

Ms. Brigham brought up, I would like to call your attention to 

this—the important thing to recognize is that most studies of 

hatchery fish have found them inferior in their productivity in the 

wild. 

The CHAIRMAN. Well, but Dr. Noss, I am asking if you support 

hatchery fish. Now, I know that there is—there may be a disagreement on that, but I think Ms. Brigham pointed out very well in 

this instance that is contrary. 

Mr. Parenteau, I want you to respond to that. 

Mr. PARENTEAU. I think captive breeding is a key tool, and I——

The CHAIRMAN. Is a key tool? 

Mr. PARENTEAU. Key tool. And it was very instrumental in bringing back the condor, the whooping crane, the black-footed ferret. It 

absolutely has a place to play in the arsenal of tools that we have. 

But Dr. Noss, being the scientist, would also be quick to point out 

it is all about the details: which species, under what circumstances, 

what is the risk of capture and propagation in one case, what is 

the risk of hatchery out-competing wild fish in another case. Each 

site-specific analysis, based on sound science, but it is definitely a 

tool that needs to be looked at. 

The CHAIRMAN. Well, let me just make this observation. The first 

hatcheries on the Columbia and Snake River systems go way back 

to the early 1900s. There were no records kept. And so, we don’t 

know—if the life cycle of a salmon is roughly 5 years, which would 

be, then, well over 20 generations, we have no idea if hatchery fish 

and wild fish went together. We just have no records of that at all. 

And then a final point I would make is prior to the Endangered 

Species Act being implemented, now 40 years ago, the buffalo was 

going extinct. The buffalo is not extinct. I would just suggest to you 

that the buffalo is a hatchery product. That is why we have so 

many buffalo. 

With that, I will recognize Ms. Bordallo. 

48

Ms. BORDALLO. Thank you, Mr. Chairman. Mr. Parenteau, in 

your testimony you pointed out flaws in a recent U.S. Chamber of 

Commerce report on so-called sue-and-settle tactics. Can you discuss briefly how the claims of government agencies giving up their 

authority in settlements creating new obligations outside the law 

are inaccurate? 

Mr. PARENTEAU. The only way that these cases are settled is by 

means of a consent decree. Consent decrees have to be approved 

by—judges will not approve a consent decree unless it is in the 

public interest and fully compliant with all of the rules and all 

laws, including the requirement that agencies go through rulemaking with public notice and comment and full transparency. 

The allegation that these are secret deals that bind the agency 

and substantive decisions is factually and legally wrong. Absolutely, uncategorically wrong. That does not happen in the American judicial system. I have been involved in negotiating these 

agreements, I have been involved in watching courts review these 

agreements. 

There was a recent ninth circuit decision in a case in which the 

ninth circuit threw out the consent decree because it didn’t ensure 

that all of the proper rulemaking procedures would be followed, 

that the public would be given an opportunity to comment on this. 

The suggestion that our courts are there to rubber-stamp collusive 

agreements is insulting to our judiciary. They do not do that, 

Madam. 

Ms. BORDALLO. Thank you. Thank you, Doctor. Another question 

for you. The Majority argues that litigation that seeks compliance 

with the Endangered Species Act impedes recovery. Now, can you 

explain how litigation can ultimately lead to collaborative species 

recovery? 

Mr. PARENTEAU. Unless the species is listed, there is no recovery. 

So the first step in the process is if the date by which listing is to 

have occurred has passed—and in some cases it has passed by 

years, not just months, but many, many years have passed beyond 

which decisions about listing should have been made—this megalisting case that people are talking about, this CBD case and the 

other WildEarth Guardians case, those are schedules. They make 

no substantive decisions whatsoever. Those are timetables to make 

decisions. Unless those decisions are made, the recovery process 

cannot even begin. 

Understand something, the Endangered Species Act itself does 

not mandate recovery. That is a fundamental flaw in the statute. 

There is no mandate for recovery in the statute. There is no timetable for recovery in the statute. There is no dedicated fund for recovery in the statute. There is no mechanism in the statute by 

which recovery is to occur by any specific date. That is a fundamental flaw in the statute. 

Ms. BORDALLO. Thank you. Dr. Noss. 

Dr. NOSS. Yes? 

Ms. BORDALLO. This Committee’s majority believes the ESA is a 

failure because many listed species have not recovered to the point 

that they can be removed from the list. Given increased pressures 

facing species, is that an accurate measure of the Act’s success? If 

you could, just briefly answer that. 

49

Dr. NOSS. I don’t believe it is an accurate measure, because, as 

I noted in my testimony, the threats that led to those species being 

listed have not abated and they have only worsened. The greatest 

ultimate threat to the survival of a species is human population 

growth. 

When the Endangered Species Act was passed in 1973, we had 

212 million people in the United States. Today we have 315 million 

people. OK? So human population has been increased by a third. 

And, depending on what happens with immigration reform, some 

people are estimating up to 600 million people within the next few 

decades in the United States. This is going to put extreme pressures—already is putting extreme pressures—on species. It is 

amazing to me that any species at all have recovered, given these 

pressures. 

Now, human population growth, the ultimate threat. But that 

leads directly, then, to the leading proximate threat, which, as Mr. 

Parenteau pointed out, is habitat loss and modification. And that 

is why we are seeing this continuing trend. 

Ms. BORDALLO. Doctor, I have another question for you, my last 

question here. Dr. Parenteau mentions in his testimony that we 

are in the midst of a sixth great global extinction brought on by 

human activity. Now, can you describe why the ESA is of such 

great importance to balancing economic activity with the ecosystems that sustain human life? 

Dr. NOSS. That is a huge question. The ESA is simply one reminder that we have to take care of the environment while pursuing economic health. And economic health and economic growth 

are not necessarily equivalent. And it is curious that only since the 

mid-20th century have those two been found to be equivalent 

through using a GDP, for example, to measure economic health. 

But the ESA does not stop economic activity. It simply guides 

economic activity toward those sectors that are greener, that do 

least harm in their activities. 

Ms. BORDALLO. Thank you very much, and I yield back. 

The CHAIRMAN. Will the gentlelady yield to me real quickly? 

Mr. Parenteau, if you said that the ESA does not call for the recovery of species, why do environmental groups not want to reauthorize the Endangered Species Act, if that fundamental part is not 

part of ESA? 

Mr. PARENTEAU. I think a lot of environmental groups would like 

to see the Endangered Species Act reauthorized. As Dr. Noss pointed out, the process takes too long. By the time——

The CHAIRMAN. Wait, wait, wait, wait. Now, what process takes 

too long? 

Mr. PARENTEAU. The entire process: the listing process, critical 

habitat, recovery, the whole process. 

The CHAIRMAN. OK. I am way over my time, but you made that 

statement and yet I hear constantly that environmental groups do 

not want to come to the table and discuss what needs to be updated in the Endangered Species Act. 

Mr. PARENTEAU. I think they do. I think they do. 

The CHAIRMAN. Well, I would welcome them——

Mr. PARENTEAU. All of them. 

50

The CHAIRMAN. I would welcome them to certainly tell this Committee that they would like to do that. Because I hear, frankly, the 

contrary to that. I welcome your statement, I really do. But I wish 

you would communicate with your brethren out there that opposes 

that, so we can have a discussion on this. 

And I am way over my time on that. I would now like to recognize Mr. Mullin from Oklahoma. 

Mr. MULLIN. Thank you, Mr. Chairman. Mr. Powell, thanks 

again for coming before this Committee today, and thank you for 

your service to our great State of Oklahoma. 

Can you tell me what role you play if a listing is done and finalized at the Federal level by the Fish and Wildlife Service on the 

Lesser Prairie Chicken and American—what I call the dung beetle, 

because around my part of the country you can kick over any pile 

of whatever, you can find these dung beetles. And what concerns 

do you have if your role is diminished going forward on this species 

recovery? 

Mr. POWELL. What we worry about from a State standpoint is 

the State really has no purpose once a listing is done. The Federal 

Government comes in, takes over all coordination of the species. 

The State can serve as just a general commenter, just like any 

other individual, but that is probably not enough when we have a—

at least in Oklahoma, our Department of Wildlife Conservation has 

a constitutional duty to oversee fish and game and wildlife in the 

State, and make sure that the resources of the State are protected. 

Mr. MULLIN. What resources do the State’s wildlife agencies possess that the fish and wildlife services don’t? 

Mr. POWELL. Probably the biggest resource, Congressman, as you 

know, is just the trust, the relationships. Most Oklahomans like 

getting out and recreating. They like hunting, they like fishing. 

They have relationships with their game wardens. They have relationships with their biologists. They have relationships with individuals who are working to go through and help what they want 

to do. That’s lost. The Federal Government is not out there. They 

are not out there in the fields. They are not out there working with 

Oklahomans to go through and try to go through and figure out 

how we can improve habitat, how we can improve species. That is 

the biggest issue that is lost. 

Mr. MULLIN. You know, and just being from Oklahoma, obviously, relationship is everything. I mean I bring this point up all 

the time, that there isn’t anybody that wants to take care of our 

land better than we do. My children are the fourth generation on 

the land that I grew up on. And we want our wildlife to be there. 

We want things to be there. But we want to have a working partner. And every time, it seems like, that we allow some agency to 

get involved, that doesn’t have the relationship, that doesn’t have 

the personal connection to our land, it just seems like they take 

common sense and throw it completely out the window, and they 

start enforcing things that don’t seem to fit. 

One size doesn’t fit all. If we can allow the States to sit back and 

do their job—now, if the States aren’t taking care of it, fine. There 

is a role there. There is a constitutional role there. But if the 

States are taking care of it, and we are seeing that the numbers 

are improving, we are seeing that we are doing our due diligence 

51

to do what we can, then the Federal Government should stay out 

of our business. And I think that is basically what you are saying. 

I am adding a little bit more to it. 

But anyways, Mr. Powell, it is my understanding that the State 

officials have repeatedly asked the Fish and Wildlife Service to explain why the Service drastically changed the Lesser Prairie Chicken listing from a priority number of eight down to two. And is that 

correct? 

Mr. POWELL. That is correct. 

Mr. MULLIN. Have you got any feedback? Have you been told 

why? I mean considering that our numbers have been swinging 

back up, have we got any explanation from them? 

Mr. POWELL. We did ask that question, and I believe that there 

has also been a number of congressional letters that have asked 

that question. The response that is received back from the Fish and 

Wildlife Service essentially said that there continue to be threats 

to the habitat. 

Mr. MULLIN. Have they been out there with you? Have you been 

in contact with them? Have they been out there and looked at it 

themselves? 

Mr. POWELL. We have been in fairly regular contact with the 

Fish and Wildlife Service, but they have failed to specify exactly 

what the threats are, and what exactly could be done, where States 

look for a creative solution to go through and try to solve these 

problems. 

Mr. MULLIN. So, just so I am not confused on this, you haven’t 

gone out in the field with him. They haven’t worked with you on 

this. This is just something they came up with themselves and said 

they were going to list it, drop it from eight to two, which is a huge 

drop. 

Mr. POWELL. It is a huge drop. It takes us from a position that 

historically the Service might not have gotten to, to essentially the 

next in line. 

The Service has gone through at some point, I am sure, at a biologist and at a low staff level been out in the field. But most of the 

people who are making the key decisions have not been out in the 

fields with our biologists, with our Department of Wildlife personnel. 

Mr. MULLIN. Last question is what is the state in the industry—

you guys are working together. What have you done that benefits 

the Lesser Prairie Chicken? 

Mr. POWELL. Probably the biggest thing that has happened is 

when the wind energy industry was beginning in Oklahoma in the 

early 2000’s, our State’s largest utility, Oklahoma Gas and Electric 

Company, came to the State and said, ‘‘We want to go through and 

proactively protect the Lesser Prairie Chicken and other species 

that these wind farms, that these transmission lines may go 

through and harm.’’

OG&E, just out of the generosity of their heart, went through and provided $9 million as offset to be used for land acquisition for 

additional research to go through and be used for habitat conservation, to go through and be used for other purposes, all to help protect the Lesser Prairie Chicken. That was no mandate of the State, 

that was no mandate of the Federal Government. 

52

Mr. MULLIN. That was just industry and the State working together? 

Mr. POWELL. Yes. 

Mr. MULLIN. Mr. Powell, thank you. Mr. Chairman, I will yield 

back. 

The CHAIRMAN. I thank the gentleman. The Chair recognizes the 

gentleman from California, Mr. Huffman. 

Mr. HUFFMAN. Thank you very much, Mr. Chair. Thank you for 

this hearing, and thank you especially for the spirit of your statement earlier that this is focusing on strategies to save and avoid 

extinction and bring about recovery, rather than whether we 

should do these things. 

And in that regard, I wanted to devote my time to this distinction between extinction avoidance and recovery that a couple of the 

witnesses, at least, have talked about. We have lots of cases in 

California where years have been spent and millions and millions 

of dollars wrangling around biological opinions and take issues. But 

we also have some success stories where people in State and local 

government have partnered with their Federal Government partners on recovery plans. 

And so, I wondered if the two witnesses—the scientist and the 

environmental attorney who have spoken to this issue a little bit—

could speak to some of the tools that are available under the Endangered Species Act to bring in State government partners, local 

government partners, even private land owners, with a bigger, 

longer-term recovery strategy in mind. 

Dr. NOSS. OK. I will begin. You know, the main, primary question of this hearing really surprises me, to some extent. Because I 

think this perceived conflict between the Federal Government and 

its activities and the States and the Tribes and the local governments on the other hand is being blown out of proportion, and may 

even be a red herring. Because everywhere I have worked in my 

40-year career I have seen, generally, really good cooperation between the Federal agencies and State, tribal, and local agencies. 

I have worked in Ohio, Oregon, California, and now most of my 

career recently in Florida. And in all those cases there are Section 

6 cooperative agreements in place that on, literally, a daily basis, 

the Federal and the State biologists sit down and work on species 

recovery. They don’t work on listing plans together; the States usually have their separate listing process. And, you know, California’s 

Endangered Species Act is stronger than the Federal Endangered 

Species Act. 

But they work together on things like habitat conservation plans 

under Section 10(a) of the Endangered Species Act. And California, 

again, has a stronger law: the Natural Communities Conservation 

Act. And I have worked on 15 of those. I was on a panel appointed 

by Governor Wilson back in the early 1990s. And these things 

work. 

I mean it has always been very productive, and I have been 

pleased to see that cooperation between Federal and State. 

Mr. HUFFMAN. Can you speak perhaps to the greater certainty 

and regulatory assurance that you can get? Because economic disruption has been brought up when we get into critical habitat designations and things like that. But I often hear from people who 

53

have entered into these HCPs and NCCPs in California that what 

they get in return—it is a lot of work, and it is a lot of collaboration, but what they get in return is much greater economic certainty than——

Dr. NOSS. Exactly. 

Mr. HUFFMAN [continuing]. Sort of fighting over take permits. 

Dr. NOSS. It has been called one-stop-shopping by a lot of large 

land owners. They can get an HCP, NCCP, and take care of all of 

their permitting needs for, say, 50 years, rather than to have to 

come back to the table for every endangered species individually, 

and develop a new plan. So it has worked. 

I would like to turn over, if you don’t mind, to Mr. Parenteau——

Mr. HUFFMAN. Yes, please. 

Dr. NOSS [continuing]. Because he has, I am sure, a lot more to 

say about that issue. 

Mr. PARENTEAU. Well, you know, the model for the habitat conservation planning program of the Nation was started in San 

Bruno with the San Bruno Blue Butterfly, and that is the model 

that we have all followed. There are now 30 million acres under 

habitat conservation plans across the country. 

In some States like South Carolina—the entire State has a Statewide habitat conservation plan for the Red Cockaded Woodpecker. 

In Michigan they have one for Kirtlands Warbler. So, those are a 

couple of the mechanisms that are there. 

I think where the real tensions come are the hard cases, like the 

Delta Smelt. I mean that is a tough case, because you are talking 

about a—I don’t have to tell you—the massive agricultural industry 

dependant on water, and a tiny fish representative of an entire estuarine ecosystem also dependant on water. That is a tough conflict. That is not going to get resolved very easily. And so we 

shouldn’t be surprised if there is tension and conflict and litigation 

over that. That just goes with the territory. 

But I think there are more examples of quiet diplomacy and 

things getting worked out than people are aware of. I think there 

are more success stories out there that don’t get nearly as much 

attention as the controversies, and that is too bad. 

Mr. HUFFMAN. Thank you both. I yield back, Mr. Chair. 

The CHAIRMAN. I thank the gentleman. Next I will recognize the 

gentleman from Utah, Mr. Stewart. 

Mr. STEWART. Thank you, Mr. Chairman. Before I begin my 

questions, a comment or two, if I could. 

Mr. Parenteau I appreciate you have given a very passionate defense of the decisions of the courts. And I have to say that if you 

believe the courts are infallible with some of their decisions or applications of law regarding ESA, or really regarding any area of the 

law, that you may be the only person in this room who would take 

that position. 

In fact, I am really quite surprised with a bit of your comment, 

when you said it was insulting to question some of these decisions. 

And being a professor of the law, I am surprised that you would 

take such a position, and I am suggesting that that is probably not 

a position you would teach your students, nor is it a position that 

you would take if it was an area of the law which you disagreed 

with the court’s decision. 

54

Dr. Noss, you mentioned—and I appreciated the fact that you 

talked about President Nixon being the one who initiated this process, and also that the vast majority of Americans agree with this. 

And I think that is worth reinforcing. And, Mr. Chairman, you 

made this point, as well. The vast majority of Americans want to 

see this be successful, including the vast majority of Republicans, 

including all of the members of this Committee. We want to see 

species protected. Certainly we don’t want to see species extinction. 

And we are all trying to accomplish the same thing. The only question is, again, as the Chairman indicated, what is the best way 

and, in some cases, the most efficient way, that we can do that? 

And in that regard I would like to then focus my comments and 

my questions regarding some of the unintended consequences that 

may result from excessive litigation, or how these petitions to 

lead—particularly these petitions to list—can lead to excessive litigation. Let me quote a statistic and then ask a question from that. 

Between 1994 and 2006 there were an average of 20 petitions to 

list that the Fish and Wildlife Service received. 

Dr. Noss, I will start with you. Do you have any idea how many 

they have received in the last few years, over the last 4 years? 

Dr. NOSS. I know it is a lot. 

Mr. STEWART. It is a lot. 

Dr. NOSS. Believe me, I am no friend of litigation in a general 

sense. I am no fan of courtroom science——

Mr. STEWART. Yes. 

Dr. NOSS [continuing]. Where talking heads come in and hire 

guns and give one side of the story without being objective. It bothers me. 

Mr. STEWART. You know——

Dr. NOSS. I have been one of those. But I try to be as honest as 

possible. 

Mr. STEWART. And I appreciate that, and I get that sense from 

your testimony, that that is kind of your attitude toward that. 

Mr. Parenteau, do you have any idea how many petitions that 

Fish and Wildlife has received over the last 4 years, compared to 

the 20 before? 

Mr. PARENTEAU. Well, I don’t have the specific number. I know 

they have increased. And the reason that they have increased is because——

Mr. STEWART. Well, we——

Mr. PARENTEAU [continuing]. Congress has put a moratorium on 

listing. The Bush Administration——

Mr. STEWART. You know how much——

Mr. PARENTEAU [continuing]. Stopped listing. There is a backlog 

of listing that has occurred over the last decades. 

Mr. STEWART. Wait, that is not——

Mr. PARENTEAU. That is the reason. 

Mr. STEWART. But that wasn’t my question, nor my comment. Do 

you have any idea how much they have increased? 

Mr. PARENTEAU. I don’t know the exact number. 

Mr. STEWART. They have gone from about——

Mr. PARENTEAU. I know it has increased, and I know the reason 

that it has increased. 

Mr. STEWART. They have gone from about 20 to more than 1,200. 

55

Mr. PARENTEAU. And the reason is because of the backlog of listing because the program hasn’t been funded, because——

Mr. STEWART. Once again, sir——

Mr. PARENTEAU [continuing]. The agencies haven’t done what the 

law requires, sir. 

Mr. STEWART. Mr. Parenteau, I haven’t asked you a question, 

and that is not the area of my questioning or my interest right 

now. My point is that they have gone up by an extraordinary 

amount. 

Now, I would like to quote——

Mr. PARENTEAU. You should ask why. 

Mr. STEWART. I know why, and I think we are—I think we have 

a disagreement on opinions as to——

Mr. PARENTEAU. All right. 

Mr. STEWART. Now, let me ask you. Would you agree with the 

current Administration’s position—this is from the Deputy Secretary Hayes—when he says, ‘‘My major concern is the fact that 

this has been fish-in-the-barrel litigation for folks who—because 

there is a deadline and we miss these deadlines, and so we have 

been spending a huge amount of time, in my mind, relatively unproductive time.’’

And once again, this isn’t a Republican administration, this is 

the current Administration saying, ‘‘relatively unproductive time’’ 

fending off lawsuits in this arena. 

Mr. Noss, again, I would like to come back to you and ask you 

to respond to that, if you would. 

Dr. NOSS. Well, the reason the agencies are getting sued is that 

they are not following the law. And the main reason they are not 

following the law is they don’t have the budget to do it. 

There is also political interference, and I have witnessed some of 

that myself. As Congressman DeFazio may be aware, the biological 

knowledge to list the Northern Spotted Owl as endangered or 

threatened existed many, many years before the listing actually 

took place. And people were scared to death about what might happen if that bird were listed. In the end, of course, it wasn’t the Endangered Species Act that caused a court injunction against logging 

in the Northwest, it was a violation of the National Environmental 

Policy Act and National Forest Management Act. 

Mr. STEWART. I would suggest that you may be right on that. In 

some cases they are sued because they may not be following the 

law. But I would also suggest—and this is very obvious to anyone 

who is honest about this—it is very clear that in many cases they 

are suing because it is a revenue source for them. 

In the last 4 years, 570 lawsuits the Justice Department has had to defend that have led to an outcome of more than $15 million allocated to different environmental groups. And it would be, I just 

think, dishonest to not recognize that is a very clear financial incentive——

Dr. NOSS. If that is happening, I deplore it. Believe me. 

Mr. STEWART. Yes, thank you. 

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

Chair recognizes the gentlelady from New Hampshire. 

Ms. BORDALLO. Mr. Chairman, I ask unanimous consent to add 

an article to the record in which Fish and Wildlife Director Dan 

56

Ashe states on the scale of the challenges that we face implementing the Endangered Species Act. Litigation doesn’t even show 

up on the radar screen. 

The CHAIRMAN. Without objection, it will be part of the record. 

[Note: The article submitted for the record by Ms. Bordallo has 

been retained in the Committee’s official files and can be found at 

http://www.fws.gov/endangered/media/

TheWildlifeProfessionalSpring2013-DansEditorial.pdf.] 

The CHAIRMAN. The Chair recognizes the gentlelady from New 

Hampshire, Ms. Shea-Porter. 

Ms. SHEA-PORTER. Thank you, Mr. Chairman. I am very concerned about the tone of this hearing, and I would ask that we not 

pit ourselves against one another or unjustly attack the men and 

the women who have come to talk to us and give us their best 

knowledge and opinion. 

Some of this, I think, is larger than the people right here. Comments such as, ‘‘Every time we allow some agency to get involved,’’ 

and then going on about how the Federal Government should stay 

out of our business if we are not doing it right, and then I took a 

look at some of the testimony again, and Mr. Parenteau wrote, 

‘‘Federal agencies have much to learn from those who are closest 

to the resources and activities affected by the ESA.’’ And so I thank 

you for that comment. 

And I would say that we shouldn’t be pitted against each other 

here. At the very beginning the Chairman said this is what we all 

agree on, that we want to protect these resources. And so, yes, we 

may have some disagreement here. But I think what we have been 

hearing today has been particularly unproductive. 

So, having said that, I will move on to Dr. Noss. Mr. Parenteau 

referenced a study that estimated more than 170 species would 

have gone extinct in ESA’s first 25 years, if not for the law’s protections. Given the fact that so many species have not been listed 

until they are on the brink of extinction, can you explain the importance of that achievement and what it says about the future? 

Dr. NOSS. Well, again, I find it amazing that the Endangered 

Species Act has been as effective as it has been, given all the hurdles and the continuing trends of ecosystem degradation. But as far 

as the future, we have to understand that biologists recognize a 

phenomenon we call the ‘‘extinction debt.’’ What it means is that 

the number of species you see out on the landscape at any given 

time includes a number of species that are basically committed to 

extinction because of habitat loss over time. They may have lost 95 

percent of their habitat. And they are still around, but they are in 

populations so small that they are going to go extinct over the next 

few decades, or maybe a century or two. But the only way to bring 

them back would be massive habitat restoration, as well as protection. 

And so, we have, really, a backlog of extinction. Some people 

have called these species the walking dead. They are out there, 

walking around, but they are not really alive, because they are not 

going to last long. I mean those are the kind of species I really 

worry about. 

And the Endangered Species Act needs to do a better job, I think, 

of prioritizing species for protection, to following its first stated 

57

goal, to conserve the ecosystems upon which these species depend, 

and do so in a broad way, rather than species by species, site by 

site, threat by threat. I think that is how we will make progress. 

Ms. SHEA-PORTER. OK. Thank you for that. And the other question I had was there was some testimony about how you can’t use 

climate change models going out, 10 years, 50 years, 100 years. 

And aren’t those models pretty accurate at this point? 

Dr. NOSS. They are getting better all the time. They always carry 

some uncertainty, and all the authors of those papers about future 

climate envelopes for species have acknowledged the uncertainty. 

They are getting better. The main questions arise about are species 

actually able to move across the landscape to where their predicted 

new habitat is located, or are we going to have to move them ourselves? And what does that mean? What kind of threats come along 

with that? 

So, there are all kinds of questions of that sort. The point is that 

the landscapes of today are heavily fragmented. And so, when climate changed in the past, sometimes just as rapidly as it is changing now—and it is really a falsehood that climate change is more 

rapid today than at any time in the past; there has been periods 

in the past that were every bit as rapid or more than what we can 

expect over the next century. But then, the landscape was connected. It was a natural landscape. Today we have cities, we have 

highways, we have huge agricultural fields in the way. That is 

where the biggest question about the impacts of climate change lie, 

in my opinion. 

Ms. SHEA-PORTER. All right. And then I have one more question. 

How many years, decades of experience do you have? 

Dr. NOSS. About four. 

Ms. SHEA-PORTER. OK, four decades of experience. 

Dr. NOSS. Plus school. 

Ms. SHEA-PORTER. Are we where you thought we would be when 

you first started in this field? Has it been better or worse, or kind 

of what you thought was going to happen, taking a long view, four 

decades ago? 

Dr. NOSS. That is a good question. I think the environmental 

awareness, and at least excitement in my generation in the 1960s 

and 1970s has waned somewhat. You don’t see it, even among my 

generation and among young people, as strongly today. And so I 

am disappointed in that. 

Things have gotten worse. I actually did not think that the population would continue to grow at the rate it has been growing, in 

the United States or globally, because population was a huge issue 

in the 1970s. Today it is taboo. People don’t want to talk about population, and especially immigration, it is not politically correct. So, 

there I am disappointed. 

But, on the other hand, the science has actually progressed faster 

than I might have predicted. We now have a pretty good understanding about what—at least those species that we have studied, 

what they need and what their ecosystems need to persist over the 

long term. And so I am excited by that. 

Ms. SHEA-PORTER. And you feel good about the science. 

The CHAIRMAN. The time of the gentlelady——

Ms. SHEA-PORTER. Thank you very much, I yield back. 

58

The CHAIRMAN. The time of the gentlelady has expired. I recognize the gentleman from Montana, Mr. Daines. 

Mr. DAINES. Thank you, Mr. Chairman. Mr. Ferrell, I was struck 

by your testimony that suggested that back in 1996, when the 

wolves were reintroduced there into the Northern Rockies—and I 

come from the State of Montana, I am an avid outdoorsman, I am 

a fifth-generation Montanan, I have spent more time above 10,000 

feet backpacking in wilderness than most Sierra Club members 

have, and so I am an avid conservationist and I love my State, and 

I love the part of the country I come from. 

In 1996, the wolves were reintroduced. And in 5 years, your testimony said, they exceeded the target goal. Yet it took us 12 years 

to move through the process of moving them off the endangered 

species list. Can you elaborate more on what the single biggest 

challenge was, in terms of it was 5 years to hit the goal, which we 

are grateful—we have the wolves, the goal they wanted—but 12 

years to get them off the list. 

Mr. FERRELL. Well, thank you for the question. The testimony, 

I think, actually reflects it has been 6 years. But still, I think what 

the point there is it is a prolific species. Once it was given protections in Yellowstone National Park, it expanded rapidly, and it continues to do that. 

And so, unlike other species that aren’t quite as reproductive, 

wolves are. And the challenges have been trying to actually get 

them delisted—have really nothing to do with the numbers, in my 

opinion. I mean they have—we have been at—like I said in my testimony, our recovery goal has been—all recovery goals have been 

met now for the twelfth consecutive year. And yet we are still facing more litigation on that delisting 9 months ago. 

Mr. DAINES. I think many of us realize that the wolves didn’t 

know where the boundary of Yellowstone National Park was. They 

tend to move. And I see them a lot. In fact, I have a wolf tag in 

my pocket from 2011 that was unused. 

Commissioner Jankovsky, a question. In your testimony you 

mentioned the necessity of the Department of the Interior to use 

accurate and viable data to support the warranted lifting. 

Second, you mentioned the importance of the Secretary of the Interior to work with local governments in their decisionmaking. And 

you come from Garfield County. We have a Garfield County in 

Montana, as well, out in the eastern part of our State. I can tell 

you, listening to what you had to say there, I couldn’t tell the difference. Whether you are from Garfield County in Montana or Garfield County in Colorado, we have the same challenges with the Department there in my home State. 

The Department has released three resource management plans 

for their Billings, Mile City, Hi-Line offices. These plans—especially their Greater Sage Grouse planning—are a supreme concern 

to county commissioners, ranchers, farmers, oil and gas developers, 

and other land users in Montana. And these plan parameters are 

established for priority-protected habitat for sage grouse, areas of 

critical environmental concern. And, by the way, the wolves are 

moving into sage grouse country as well, now, which is just another 

dynamic as we think about working with balancing the species, because wolves do need to eat. 

59

The comment period for these plans end abruptly this month, 

without the possibility of an extension. The reasoning the BLM 

mentioned for the refusal to extend these comment periods is due 

to the mega-settlement reached between the Department, the U.S. 

Fish and Wildlife Service, and groups like the Center for Biological 

Diversity referenced in this hearing. 

In your opinion, since the settlement was negotiated amongst the 

Department, the U.S. Fish and Wildlife Service, and the groups to 

conserve the Greater Sage Grouse, is it possible for the Department 

and BLM to extend comment periods for resource management 

plans in order to assure adequate data is considered? 

Mr. JANKOVSKY. Yes, in my opinion, this covers 11 States, it covers 69 different planning units within the BLM. And I believe if 

counties were to ask for an extension, that is possible. But the 

problem is—and what I have heard as a cooperating agency—is we 

are under the gun, we are under a timeframe, where we have to 

get this done by 2014 for habitat management, so the bird will not 

be listed in 2015. 

Mr. DAINES. Is another good reason for extension so that local 

Montanans can have sufficient opportunity to digest the proposed 

plans, evaluate impacts, and then comment on them? 

Mr. JANKOVSKY. Well, I agree with that. We are one county with 

a very different topography, as I mentioned, from where the studies 

were done for the NTT report. And I think when you cover 11 

States in the Western United States, you are going to find many 

counties with very diverse topography, very diverse uses of their 

land, and this is a big issue that I think actually has been misused 

to some extent. 

Mr. DAINES. Quickly, as we are running out of time, can you expand on this uncertainty a declaration of priority habitat creates 

for neighboring ranchers, private property owners, and resource development? 

Mr. JANKOVSKY. Well, I think, first of all, that the best science 

hasn’t been used. There are studies out now that grazing actually 

works well with the sage grouse and improves the habitat. And it 

does not state that in the NTT report. 

Mr. DAINES. Thank you. 

The CHAIRMAN. The time of the gentleman has expired. I recognize the gentleman from Oregon, Mr. DeFazio. 

Mr. DEFAZIO. Thank you, Mr. Chairman. Dr. Noss, you talked at 

some length about ecosystems, rather than individual species. And 

that would essentially require a refocusing and potentially a 

change in the Endangered Species Act, would it not? 

Dr. NOSS. Well, it was the first stated goal, but it was not mentioned in the original Act. It is mentioned again—I think it was in 

the 1982 amendments but, again, with no clear direction to Congress for how to accomplish that goal. 

Mr. DEFAZIO. Right. And——

Dr. NOSS. So, yes, I think there needs, personally, to be a new 

law. 

Now, it is interesting, the Province of Manitoba, just last month, 

renewed their Endangered Species Act, but now it is the Endangered Species and Endangered Ecosystems Act, and they are especially designating tall grass prairies, calcareous prairies, and other 

60

ecosystems within the province that have declined greatly. And the 

point is, when ecosystems decline, so do the species associated with 

them. 

So, for many decades I have championed an ecosystem conservation as a proactive, cost-effective way to take care of a number of 

these species, rather than to have to deal with them all individually. 

Mr. DEFAZIO. Right. In the last couple of years, as we have been 

trying to work through management of the forests in Oregon, I was 

out with someone from Fish and Wildlife, a top official. And there 

was some controversy over a proposed management prescription 

which would have removed some rather large fir trees in a ponderosa pine area. And he said, ‘‘Look. What is good for the forest 

is good for’’—not just the owl, but the other species, also. 

Dr. NOSS. I agree. 

Mr. DEFAZIO. So, somehow we have to kind of move from that 

rifle shot to something that is a little broader, generally. 

Dr. NOSS. I agree. But, at the same time, I think we have to recognize that even if we really implemented ecosystem conservation 

in the best possible way, there will still be those species, those conservation-reliant species, those walking dead species, that are 

going to need individual attention for quite a while until the ecosystems are once again healthy enough to sustain them. 

Mr. DEFAZIO. Right. And then HCPs would have to play a big 

role in that, right, since this is not exclusively taking place on Federal land. 

Dr. NOSS. Exactly right. And the best HCPs that I have seen consider the ecosystem and ecological processes, as well as the individual species. HCPs, of course, are all over the block. Some of 

them are excellent, at least so far; others are pretty dismal failures. But HCP is one way we can accomplish ecosystem conservation, if done right. 

Mr. DEFAZIO. And then, the issue of excluding States, I don’t believe States should be sort of just a bystander in the process. 

Dr. NOSS. I agree. 

Mr. DEFAZIO. You mentioned the Oregon salmon management 

plan as a success. Do you think we need somehow to change the 

status of States as interveners in the Act, or cooperators, or give 

them some enhanced status? 

Dr. NOSS. I think a well-developed conservation or cooperative 

agreement under Section 6 is really all we need. That is what that 

section was written for. And in many States, such as Florida, the 

States and the Feds are cooperating completely. And, in fact, some 

of the environmental groups are upset that the State now has a lot 

more authority about management of species than they did in the 

past. So some of those details remain to be worked out, but I think 

we have the mechanism right there. 

Mr. DEFAZIO. Mr. Parenteau, would you comment on that? What 

do you feel about the role of the States in this? 

Mr. PARENTEAU. Well, I think it varies from State to State, but 

I think there are some outstanding examples of where States have 

done tremendous things. We have already talked about the California NCCP program. I point out the multi-species habitat conservation plan in South Florida, the multi-species habitat conservaVerDate 0ct 09 2002 09:43 Nov 26, 2013 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6602 Y:\02FISH~1\02MY16\81318.TXT MARK
61

tion plan around Austin for two species of birds and a variety of 

invertebrate species in caves around Austin that settled a long-running dispute over how development was going to occur in a very 

economically high——

Mr. DEFAZIO. Well, what are the barriers, then? Why doesn’t this 

take place more——

Mr. PARENTEAU. Money and staff is a big part of it. It always 

comes back to that. If you give the States the responsibility, are 

you also going to give them the means to carry out that responsibility? If you give the Fish and Wildlife Service the mandate to go 

out and work with the States, are you going to give them the 

money and the staff to do that? If you want these plans to be based 

on sound science, are you going to fund the kinds of studies that 

are needed? 

If you are talking about ecosystem approaches, you are talking 

about crossing boundaries, not just county boundaries, State 

boundaries, but international boundaries. For some of these species 

you are talking continental ecosystems. 

So it is fine to talk about the goal of raising the bar to ecosystem 

level. But to operationalize that in a legal sense, to make it more 

than philosophy, to make it law, that has been the stumbling block. 

It is not easy to conceptualize the kinds of standards—the lawyers 

have been at this in my field forever. And in the Academy the literature is as big as this room on how would you construct a law 

that had metrics of measurement and standards to actually make 

ecosystem management work on the ground. That is the challenge. 

Mr. DEFAZIO. OK, thank you. Thank you, Mr. Chairman. 

The CHAIRMAN. Yes, the time of the gentleman has expired. I recognize the gentleman from Texas, Mr. Flores. 

Mr. FLORES. Thank you, Mr. Chairman. Just a question for Mr. 

Powell, Mr. Ferrell, and Mr. Jankovsky. Each of you has talked 

about the positive things going on at your State and local levels. 

And, I guess, Ms. Brigham, you as well. You have talked about the 

things going at State, local, and tribal levels. You have also talked 

about the lack of coordination between the Federal Government 

with respect to endangered species. And one of the messages I 

think I heard from you—and I just need you to confirm this—is 

that there is not a consistency between Federal plans and State 

and local plans. Am I correct in my understanding? 

Mr. POWELL. That is correct. 

Mr. FLORES. OK. Ms. Brigham? Mr. Ferrell? Mr. Jankovsky? OK. 

In light of that, what could the Federal Government learn from 

your experiences when it comes to identifying and protecting and 

recovering species? Mr. Powell, you first. 

Mr. POWELL. At least from Oklahoma’s standpoint, what we are 

emphasizing is a voluntary framework through both our State conservation plan with the Lesser Prairie Chicken, and now the fiveState range-wide plan, a plan that, in the event that a listing does 

not go forward, that they do find a not-warranted result, which is 

the goal of all five of the States, that the mechanisms, that the 

mitigation, everything would still exist in the future as a voluntary 

resource. Obviously, we would not go through and force folks to do 

it. There are a lot of folks, especially in our oil and gas industry 

and in our energy industry that are going to continue to do it, and 

62

have told us that, simply because they worry about a future listing 

coming down if they fail to do it. 

Mr. FLORES. OK. Ms. Brigham? 

Ms. BRIGHAM. Thank you. I think if the NOAA and the U.S. Fish 

and Wildlife Service would focus on the priority of delisting and developing plans to do that, we could accomplish a lot. But they seem 

to be growing their science departments and not focusing on rebuilding or delisting. 

Mr. FLORES. OK. Mr. Ferrell? 

Mr. FERRELL. The voluntary framework certainly is important for 

us in Wyoming, as well. But a good example of where I think we 

have taken a leading role is in our executive order for sage grouse 

conservation. Essentially, that is designed on a core area concept, 

where 80 percent of the birds actually exist on less than 30 percent 

of the landscape in Wyoming. So you can provide a regulatory 

mechanism that protects those, but still allows some leeway for industry to continue to develop their goals, as well. 

Mr. FLORES. OK. Mr. Jankovsky? 

Mr. JANKOVSKY. Yes. In our case, we became the center of all the 

agencies. We talked to the Federal Government, and they referred 

us back to the State government. We had to go back to the State 

government and then take that back to the Federal Government. 

And then we had coordination meetings that not only had all three 

governments there together, but allowed the public and environmental groups and large land owners to listen and participate, as 

well. 

Mr. FLORES. OK. The subject of this hearing today was about the 

sue-and-settle practices that have gone on at the FWS. And one of 

the things I have tried to do to deal with that is to introduce 

H.R. 1314, and it applies to the ESA citizen suits, where the Department of the Interior allegedly fails to perform a non-discretionary act such as missing a deadline in the listing process. This 

kind of suit is driving much of the litigation, and enabling plaintiffs 

to dictate terms to the FWS. 

What this legislation does is it gives local government and stakeholders—and that is the four of you at the table—a say in the settlements, enhancing the ability of parties affected by potential regulation to intervene in the lawsuit. Furthermore, it would prevent 

a judge from approving a settlement if States and counties to the 

plan object. 

It doesn’t change ESA in a way that limits the FWS’s regulatory 

authority, or prevents it from litigating a case to resolution. 

H.R. 1314 maintains FWS’s ability to reach a settlement, provided 

that the States, the counties, and the stakeholders, are given a seat 

at the table. 

So, Mr. Powell, in my limited time, would that be helpful to you? 

Mr. POWELL. It would be extremely helpful. As we have seen 

with the mass resettlement, it would allow us to at least see and 

maybe have a part in helping to prioritize when listing decisions 

would be needed. 

Mr. FLORES. Ms. Brigham? 

Ms. BRIGHAM. Same thing. 

Mr. FLORES. OK. Mr. Ferrell? 

Mr. FERRELL. Absolutely. 

63

Mr. FLORES. Mr. Jankovsky? 

Mr. JANKOVSKY. Yes. 

Mr. FLORES. Thank you. I yield back. 

The CHAIRMAN. The gentleman yields back his time. The Chair 

recognizes the gentleman from California, Mr. Ca ́ rdenas. 

Mr. CA ́ RDENAS. Thank you very much. I would like to allow you, 

Mr. Parenteau, to elaborate on something that maybe one of my 

colleagues wasn’t very interested in your answer, but I certainly 

am. It is about environmental groups and how, in my opinion, environmental groups are not monolithic in their thoughts or efforts. 

Just like, for example, the congressional species that just gathers 

in this room, a lot of times we might disagree on a 22-to-18 basis 

ongoing very often. So we are not monolithic either, even though 

we may have the same titles and, at the end of the day, may even 

have the same goals. 

So, what do you think would lead to less lawsuits? Because that 

was the discussion earlier, and it was about lawsuits and the attack on—that environmental groups are of a certain nature and 

that that leads to lawsuits. 

Mr. PARENTEAU. I think batch listing is the way to go. 

Mr. CA ́ RDENAS. What is that? 

Mr. PARENTEAU. Batch listing, which is happening. The megasettlements that we are talking about, one of the advantages of 

them is that is going to require that more than one species be listed at a time. 

I am fully in agreement that process ought to be open to those 

who want to comment on it. I don’t have any argument about that. 

And my point is that before any consent decree is entered by a Federal district judge there is the opportunity for comment. Now, 

whether people took advantage of it or not, I can’t say. 

But I can say, as a matter of law, those decrees have to be noticed in the Federal Register, there is an opportunity to comment, 

there is an opportunity to tell the judge why the decree is wrong, 

how people are prejudiced by it, how it is going to have adverse effects on the public interest, so all the people at this table who don’t 

like these multi-settlement agreements, in my view, missed an opportunity when those settlements were entered. They had the opportunity to weigh in if they wanted to so they could take advantage of that. 

If something more needs to be done, I would be one of those to 

say it is better to have people’s problems with agreements registered earlier, rather than later. So, the more the process can be 

transparent and opened up to people to say, ‘‘Wait a minute, this 

is not the right thing to do, this is going to have this adverse effect 

that you may not have thought about,’’ that is a good thing to do. 

But the fundamental problem of why we have so many lawsuits 

is because there are so many violations. And the reason that we 

have so many violations is because the Agency is not performing 

non-discretionary duties. And the reason they are not doing that is 

they don’t have the staff, they don’t have the funding, they have 

political interference, they have other things they want to do. 

Whatever the reasons are, it is no secret. It is not rocket science. 

There are violations of law, and the courts are saying that is what 

is happening, and it has to stop. 

64

If you want to change the law, if you want to structure a new 

process that avoids the one-by-one listings, fine. I think there are 

some environmental groups out there who would be willing to entertain that conversation, so long as the goal is strengthening the 

recovery process, not weakening it. If that can be the agenda, I 

would think there would be people who would be willing to pursue 

that. 

Mr. CA ́ RDENAS. Mr. Noss, when it comes to the science behind 

this whole discussion why we are where we are, why the United 

States even has these laws on the books, or what have you, can you 

please remind us why we—the connection between the purpose for 

protecting species and the connection between the human species? 

Dr. NOSS. Well, the Endangered Species Act, again, was the response of the American public talking to its legislatures about their 

concern that wildlife was disappearing, was declining. And there 

were many species of especially charismatic——

Mr. CA ́ RDENAS. But let’s get past that. The reason why I asked 

this question is because a lot of people say, ‘‘So what if a butterfly 

is gone? So what?’’ Or, if a particular wolf is no longer around, so 

what? Or a particular rabbit, or a particular lizard——

Dr. NOSS. OK. 

Mr. CA ́ RDENAS. That is my point. 

Dr. NOSS. OK——

Mr. CA ́ RDENAS. I mean a lot of people don’t understand—or 

maybe you are wrong in your answer. I don’t—I——

Dr. NOSS. Well, I actually—I was getting to that. Because originally, the——

Mr. CA ́ RDENAS. But we have an element of time, so——

Dr. NOSS [continuing]. Focus was on big, charismatic—what? 

Mr. CA ́ RDENAS. If you could condense it. 

Dr. NOSS. OK. The original focus was on the big, charismatic species. Science has progressed to the point that we now recognize the 

role of these smaller, to most people less charismatic species that 

are absolutely critical to the function of that ecosystem, that contain chemicals and structures in their body that have proven very 

useful for industry, for medical science, and so on. 

And also, this ecosystem functions best when the full suite of 

species is maintained. And we can’t predict, in many cases, exactly 

what will happen to the ecosystem if we lose a given species, because there is some kinds of redundancy built into the system. But 

because we can’t predict, to keep every cog and wheel is the best 

intelligent tinkering, as Aldo Leopold pointed out years ago. So it 

is a precautionary approach. 

We know that these species play valuable roles. It is hard to say 

exactly what those are, because there hasn’t been money to study 

them sufficiently, but they do play roles that the American people 

depend on, both directly through products and chemicals, and indirectly through the services provided by ecosystems. 

Mr. CA ́ RDENAS. So there is, without question, a connection. 

The CHAIRMAN. The time of the gentleman——

Dr. NOSS. Without question, it is very well substantiated. 

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

Mr. CA ́ RDENAS. Thank you very much, Mr. Chairman. I yield 

back. 

65

The CHAIRMAN. The Chair recognizes the gentleman from California, Mr. McClintock. 

Mr. MCCLINTOCK. Thank you, Mr. Chairman. As I listen to the 

acting Ranking Member, on behalf of the Democratic Minority, one 

would think that the ESA was this magnificent success to the environment that has had no cost to our economy. This is sheer fantasy. 

You know, as to the former claim, I direct her attention to the 

Pacific Legal Foundation study that utterly debunked the notion 

that this has been such a fabulous success. The PLF documented 

that more than 30 percent of all of the delisted species noted by 

the Center for Biological Diversity were because of Federal data 

error. In other words, they shouldn’t have been listed in the first 

place. 

And as to the latter claim that this has come with no economic 

cost, I would certainly invite her to come to California’s Central 

Valley, where the ESA has required the diversion, literally, of billions of gallons of water from the Central Valley agriculture that 

has destroyed literally hundreds of thousands of acres of some of 

the most fertile and productive farm land in America that has 

thrown thousands of farm-working families into unemployment, 

that has raised grocery prices for us all, all in the name of the 

three-inch delta smelt. 

Currently, Fish and Wildlife proposes to declare about 2 million 

acres of the Sierra Nevada as critical habitat to protect the Mountain Yellow-Legged Frog. That is essentially the entire Sierra Nevada. That means severe restrictions or outright prohibitions on 

grazing, on timber harvest that are already down 86 percent from 

1980 levels, fire management, recreation, including hiking and rafting and camping. This in an area that has already been economically devastated by Federal regulations, is threatened by catastrophic forest fires, and is heavily dependant on both resources 

and tourism for its economy. 

This bespeaks a complete lack of balance in addressing the issue, 

and an ideological extremism that is utterly breathtaking in its 

scope and utter disdain for the welfare of millions of American families who are affected by these policies. 

You know, as the Chairman said, no one wants to see a species 

go extinct. We want a super-abundance of these species, which, it 

seems to me, we can produce at far lower cost than the extensive 

and expensive measures required by ESA, which brings me to Ms. 

Brigham and her experience with fish hatcheries on the Columbia. 

It reminded me of my experience on the Klamath, where this Administration is seeking to spend over a half-a-billion dollars of taxpayer money to tear down four perfectly good hydroelectric dams 

that are producing—or capable of producing—155 megawatts of the 

cleanest and cheapest electricity on the planet. The excuse is because of a catastrophic decline in the salmon population on the 

Klamath. 

When I first visited there and was told of this, I said, ‘‘Well, why 

doesn’t somebody build a fish hatchery?’’ Well, it finds out somebody did build a fish hatchery at the Iron Gate Dam. It produces 

5 million salmon smolts a year. Seventeen thousand of those smolts 

return as fully grown adults to spawn in the Klamath every year. 

66

The problem is they are not allowed to be included in the population counts. 

Ms. Brigham, we are told that, well, they are just not the same, 

hatchery fish and wild-born fish. But it seems to me the only difference between a hatchery fish and a wild-born fish is the difference between a baby born at home and a baby born at the hospital. Have you discerned any differences between the hatchery fish 

and the wild born fish? 

Ms. BRIGHAM. On the Columbia River, the only way we can identify the difference is the mass marking that occurs on the Columbia 

River. If it doesn’t have an adipose clip, it is a wild fish. If it has 

an adipose clip, it is a hatchery fish. If it has its clip or fin adipose, 

then it is a wild fish, and that is the only way you can tell the difference. 

Mr. MCCLINTOCK. Well, after a hatchery smolt has gone into the 

ocean, survived 5 years in the open ocean, and returned as a fully 

grown adult to spawn, hasn’t it already demonstrated that it is just 

as hale and hearty as a wild-born fish? 

Ms. BRIGHAM. It is all due to management, yes. 

Mr. MCCLINTOCK. And don’t the same laws of natural selection 

in the wild apply equally to hatchery fish and wild-born fish during 

those 5 years that they are in the open ocean? 

Ms. BRIGHAM. Yes. 

Mr. MCCLINTOCK. Well, then, it seems to me we ought to just 

count the damn hatchery fish. 

Captive breeding of the broad-backed California condor brought 

them back from the brink of extinction, it seems to me that we 

should be encouraging that practice. It is also dramatically cheaper 

than measures that are otherwise required by the ESA. 

Mr. Jankovsky, if we assured the product of captive breeding programs were included in assessing population counts and mitigation 

measures, what effect would that have on the issues that you are 

dealing with? 

Mr. JANKOVSKY. Well, on sage grouse it is a little bit different, 

but there is one recent study showing that eggs that were produced 

in a hatchery, so to speak, or an incubator, have been successful. 

Mr. MCCLINTOCK. My time has expired, but I would also be interested in thoughts of any of the other Members who are testifying. 

The CHAIRMAN. If they could respond, I would appreciate it. 

Thank you. 

Ms. BRIGHAM. I have a quick——

The CHAIRMAN. The Chair recognizes the gentleman from Nevada, Mr. Horsford. 

Mr. HORSFORD. The mic isn’t working. I guess when you get to 

the end, it doesn’t work as well. 

[Laughter.] 

Mr. HORSFORD. Thank you, Mr. Chairman, members of the Committee, for testifying today. I am from Nevada. I represent both the 

rural and urban part of 52,000 square miles in Nevada. And we are 

working on the recovery of sage grouse in our State. And we don’t 

know yet if sage grouse will need to be listed, but our Governor is 

working with State, local, and Federal agencies to help recover species now, so we can be proactive. 

67

So, I would like to ask what might be the implications for species 

if Congress modifies the Act, or if outside advocates are not allowed 

to petition for species protection. Mr. Noss. 

Dr. NOSS. The rate of listing has been so slow that without the 

petitioning process to bring species to the attention of the Fish and 

Wildlife Service, I think we would have a lot of species sinking into 

the brink of extinction before they are noticed. 

Many of the species that have been petitioned for listing of 

course still don’t get listed. They have been put into this warranted-but-precluded category, where listing is found to be warranted, based on the best available scientific information, but then 

they sit in limbo for up to decades. So there, the citizen petition 

process has failed. But it is primarily because, at least from what 

the Fish and Wildlife Service says, it is because of high-priority 

listing actions taking precedence over those considered of lower priority, which is often a political decision. 

But the bottom line is they don’t have enough money to list all 

the species that are petitioned. 

Mr. HORSFORD. So, to that point, I wanted—that was a followup question that I had. So, in the event that there is a delay in 

listing, what does that do to the actual eventual recovery? Does 

that make that easier or more difficult? 

Dr. NOSS. If the delay results in continuing population decline of 

the species, which, in most cases, it does, without the protection of 

the Act, then recovery is going to be more difficult. The smaller and 

more precarious the population at the time that recovery kicks in, 

the more difficult it is to ever get that species off the Act. 

Mr. HORSFORD. So then can you or anyone else identify or comment on any early intervention—best practices to intervention recovery? 

Dr. NOSS. In some cases the States are doing that. There is one 

species that I petitioned for listing back in 1987, in Florida, the 

Sherman’s Fox Squirrel. It is still in warranted precluded category 

with Fish and Wildlife Service after all those decades. But the 

State now is undertaking extensive surveys and studies of this species, and has an action plan in draft form that I just reviewed the 

other day. 

So, that is an example where a State has stepped in where the 

Federal Government was basically not at the door, and done what 

was necessary at least to try to get the information to figure out 

how to recover this species. So it is still listed by the State, even 

though the Feds have refused to list it so far. 

Mr. HORSFORD. OK. And is it correct that environmental groups 

aren’t the only ones who can recover under the ESA’s citizen suit 

provision? Is that correct? 

Mr. PARENTEAU. That is correct. 

Mr. HORSFORD. So, instead, a broad spectrum of people, including those who do not want species to receive ESA protections frequently file suits under this provision? 

Mr. PARENTEAU. Absolutely right. 

Mr. HORSFORD. And so, would you care to address, then, some of 

the remarks during this hearing about the ESA is a failure because 

so few species have recovered? 

68

Dr. NOSS. Well, as I think several people have commented now, 

it is amazing that any species have recovered, given the increasing 

threats to these species existence that can be linked to human population growth and increasing habitat destruction. So it is really no 

surprise that recovery has been so slow. Even with lots of money 

dedicated to the recovery of these species, we would still have severe problems recovering many of them, because their habitat just 

isn’t there. 

Mr. HORSFORD. OK. Well, thank you, Mr. Chairman, and I will 

conclude there. I would again just ask, as we are trying to do in 

our State, my objective of being on this Committee is finding best 

practices to solve problems. And sage grouse is a big problem. We 

know it is a problem in other places. There are strategies that we 

can implement now proactively, and I would like to work cooperatively with my colleagues on the other side to figure out ways to 

do that, so that we can prevent these type of species being listed, 

thereby avoiding delay in development and growing our economy. 

So I appreciate you very much. 

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

Chair recognizes the gentlelady from Wyoming, Mrs. Lummis. 

Mrs. LUMMIS. Thank you, Mr. Chairman, and thank you, one and 

all, for attending today. 

Mr. Ferrell, a question for you. About how much money and 

manpower has the State of Wyoming put into on-the-ground conservation and wildlife management? 

Mr. FERRELL. Thank you for the question, Congresswoman. Well, 

just annually, for example, the Game and Fish’s budget is about 

$60 million a year. All of that is essentially going toward conservation. The Wyoming Wildlife and Natural Resources trust fund has 

put a tremendous amount of money in just sage grouse alone. In 

the last 3 years, I think the number is over $100 million between 

matched money by the private sector in the State of Wyoming and, 

for example, the Natural Resource Conservation Service’s sage 

grouse initiative. 

So, we are talking numbers that we have never seen before in 

my profession being committed by a State to a single species. 

Mrs. LUMMIS. And how much money, roughly, is in the Wyoming 

Wildlife and Natural Resources trust fund? 

Mr. FERRELL. Oh——

Mrs. LUMMIS. That is—I will get that from you later. 

Mr. FERRELL. I could get that for you later. 

Mrs. LUMMIS. OK. What about other stewardship conservation 

groups and volunteer organizations? Do they add anything to the 

effort? 

Mr. FERRELL. Absolutely. 

Mrs. LUMMIS. Let me ask you about some of those, if I could, sort 

of yes or no. Does the Rocky Mountain Elk Foundation do on-theground conservation? 

Mr. FERRELL. Absolutely. 

Mrs. LUMMIS. And do they help you, in your capacity as Wyoming’s Endangered Species Act coordinator with on-the-ground recovery? 

69

Mr. FERRELL. They do. They are primarily focused on elk, but 

they are looking at landscape-scale projects that help endangered 

species, as well. 

Mrs. LUMMIS. What about the Conservation Fund? 

Mr. FERRELL. They do, as well. They help fund some of those conservation easements that I have spoken about regarding sage 

grouse. 

Mrs. LUMMIS. What about the Wyoming Stock Growers Land 

Trust? 

Mr. FERRELL. Very, very active in conservation. Also in the sage 

grouse arena. 

Mrs. LUMMIS. Do you know if the Montana Land Reliance, the 

Colorado Cattlemen’s Ag Land Trust, the California Range Land 

Trust participate in conserving species, along with ecosystem efforts? 

Mr. FERRELL. I am not familiar with what those groups are 

doing. 

Mrs. LUMMIS. OK. What about the Center for Biological Diversity? Has it done actual conservation work on the ground in our 

State? 

Mr. FERRELL. Not to my knowledge. 

Mrs. LUMMIS. What about the Natural Resources Defense Fund, 

the NRDC? 

Mr. FERRELL. Again, not to my knowledge. 

Mrs. LUMMIS. How about WildEarth Guardians? 

Mr. FERRELL. Same. 

Mrs. LUMMIS. No on-the-ground conservation work? 

Mr. FERRELL. Not that I know of. 

Mrs. LUMMIS. In our State. Do you know if they have done—did 

they do any in Arizona, when you were in Arizona? 

Mr. FERRELL. No. 

Mrs. LUMMIS. I have a question about grizzly bears. Was the 

grizzly bear at one time—first of all, is it listed as an endangered 

species? 

Mr. FERRELL. It is listed as threatened. 

Mrs. LUMMIS. Threatened. At one time was it considered recovered under the initial breeding pair per land area recovery criteria? 

Mr. FERRELL. It was delisted in 2007 and put back on the list 

through litigation in 2008. 

Mrs. LUMMIS. And was it under a different set of criteria? Why, 

when it was recovered under initial criteria, was it subsequently 

put back on a lesser level of listing, but nevertheless a listing level? 

Mr. FERRELL. The downlisting from endangered to threatened I 

believe happened a long, long time ago. I couldn’t comment on that. 

Mrs. LUMMIS. You mentioned seven suggestions that you had for 

this Committee in your testimony. You also discussed two of them, 

litigation and climate change modeling—you went into some detail 

on those. Could you give us a couple more examples that you would 

like to highlight of those seven suggestions in your testimony? 

Mr. FERRELL. I would be happy to. One of the things is this definition of significant portion of the range. It is kind of a technical 

analysis, but what had happened in 2011, there were two court decisions primarily that said you can’t delist on administrative 

boundaries any more. The frustration with that is that administraVerDate 0ct 09 2002 09:43 Nov 26, 2013 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6602 Y:\02FISH~1\02MY16\81318.TXT MARK
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tive boundaries is where regulatory mechanisms come from. That 

is the source of a regulatory mechanism. And yet, regulatory mechanisms are often cited, including those cases, as what is being inadequate, causing the relisting of a delisted species. 

But aside from that, the current draft definition of SPR doesn’t 

allow one to use some of the tools that are most important to us 

in conserving threatened species, those being 10(j) designations and 

4(d) rules. 

Mrs. LUMMIS. So 10(j)—my time has expired. If we go into a second round, I would like to explore non-essential experimental populations. Thank you. 

The CHAIRMAN. Or we will get a written answer to those remarks. 

The Chair recognizes the gentleman from California, Mr. Costa. 

Mr. COSTA. Thank you very much, Mr. Chairman. I have a lot 

of questions, can’t cover it all, I will submit them for the record. 

I want to talk first about 50,000 feet, and then maybe a little 

more specifically to some California issues. When I was here earlier 

in the hearing there was some discussion about recommendations 

that the environmental community has provided to reform the Endangered Species Act. Did either of our two professors here provide 

a listing of what those recommendations are? 

Mr. PARENTEAU. I think the most extensive discussion was during Senator Kempthorne’s tenure. That is the last time that I recall 

that there was a serious effort——

Mr. COSTA. Do you have a series of recommendations? 

Mr. PARENTEAU. For how the Act should be changed? 

Mr. COSTA. Yes. 

Mr. PARENTEAU. Yes. It needs a recovery mandate, it needs a 

dedicated fund for recovery. It needs to do multiple species listings. 

It needs to explore—because I don’t think we are ready to write a 

law yet—how you would get to an ecosystem level approach to conservation and get away from this one-species-at-a-time approach. I 

don’t think we are ready to write a law——

Mr. COSTA. Well, it has been a criticism for a long time, one species at a time. And now, looking at the entire ecosystem, certainly 

places that I am familiar with in California, and I think that is a 

result of—let me drill down a little further. 

We have arguments all the time about best use of science. And 

I don’t know, if some others of you would like to opine, please 

chime in. The science is always changing. We get better at it. And, 

of course, there are different interpretations of the science that are 

used by folks of various philosophical persuasions. So how do you 

determine what, in fact, is the best science, when it is continuing 

to evolve, and we learn more? Dr. Noss? 

Dr. NOSS. The weight that the approach that scientists themselves use is evidence-based research. Basically, it is the weight of 

evidence. Science does keep changing, but at any moment in time 

there is not necessarily a consensus in the pure sense of that word, 

but there is weight of evidence favoring one point of view over the 

other. This does change through time, but it changes relatively 

slowly. I think that recovery plans should be revised when the 

weight of evidence for a new approach changes. 

71

Mr. COSTA. Yes, but in terms of the practical application of that, 

then we get muddled into lawsuits, which are very lengthy, very 

costly, and, at the end of the day, I don’t think do much to resolve 

the restoration of any particular species. 

Dr. NOSS. I think it depends on defensibility of the change. If the 

change is arbitrary and capricious, that is one thing. But if the 

change is based on the best available science at that time, on the 

weight of evidence——

Mr. COSTA. What do you think about the——

Dr. NOSS [continuing]. To not change is irresponsible. 

Mr. COSTA [continuing]. When you are trying to evaluate best 

science, and we talk about reasonable and prudent alternatives and 

the application of reasonable and prudent alternatives to create 

flexibility, when there are differences as it relates to the science? 

Dr. NOSS. Science seldom points to one option as the only option 

that might succeed. There is generally options that might——

Mr. COSTA. I concur with you, but we have—in projects that my 

colleague, Mr. McClintock, was talking about, we have a—there 

are—I concur with you, there are a lot of knobs here that you can 

turn to try to——

Dr. NOSS. Exactly. 

Mr. COSTA [continuing]. Impact an ecosystem. But in these water 

fights that we handle, we continue to use one knob and ignore all 

the other factors that are impacting the ecosystem and particular 

species. But it is done for a particular agenda, and for a purpose. 

And then it makes it very, very difficult to get folks to agree. 

Let me ask you another question, because, I mean, we understand how the game is played. But a noted environmentalist was 

making reference to the Keystone Pipeline, about mitigation for the 

Keystone Pipeline. And I thought he was very forthcoming in his 

comment. He says, ‘‘There is no mitigation that can be done for the 

Keystone Pipeline,’’ which, by the way, I support. And he says, ‘‘We 

just don’t believe we ought to continue to foster any enhancement 

of fossil fuel. And so, if we don’t build the Keystone Pipeline, it will 

have that, we hope, that effect, and therefore, no mitigation is acceptable.’’

I mean my view is we have hundreds and thousands of miles of 

pipelines in this country, and if we can’t build that, gee, safely, we 

ought to give up, because you can mitigate for it. Now, at least if 

the agenda is we don’t want any fossil fuel, and we want to discourage it, then let’s not talk about mitigation, because that is not 

the issue. 

Let me ask you one last question before my time runs out here. 

Restoration versus extinction. Species have been going extinct for 

hundreds and millions of years. But now, of course, it is man’s impact on it. When do we make an ethical judgment as to what the 

contributions are that man is contributing to an extinction versus 

the natural course of evolution? 

Dr. NOSS. There are species that are on their way out naturally, 

but that is a very slow pace. As Mr. Parenteau mentioned, science 

is overwhelming in support of the idea that extinction rates today 

are hundreds to thousands of time the natural rate, which are referred to as the background rates. 

72

So, yes, there are some species that, if we did nothing either for 

them or against them, they would slip away over periods of decades, centuries, millennia. But the kind of extinction rate we have 

now, thousands of species going extinct every year, is way out of 

the ballpark. We haven’t seen anything like it for 65 million years. 

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

Chair recognizes the gentleman from Colorado, Mr. Tipton. 

Mr. TIPTON. Thank you, Mr. Chairman, and I would like to 

thank our panel for taking the time to be here. 

Mr. Jankovsky, I would like to ask a couple of questions out of 

our area. You have raised concern over the technical team report 

on the Greater Sage Grouse. How does that model that they are 

putting forward out of the BLM, how does that fit the topography 

of Garfield County in Colorado? 

Mr. JANKOVSKY. Well, as far as topography, it doesn’t fit at all. 

The technical team report was done and the studies were done primarily in Central Wyoming, where you have miles and miles of 

rolling sage brush. And in our part of the State we have high plateaus with the sage brush on top, with valleys with a mixture of 

aspen, conifer, juniper, pinyon forest. So it is more of a patchwork. 

Mr. TIPTON. So, essentially, your—Mr. Daines had talked about 

up in Montana we have very different topography, but apparently 

the BLM is trying to institute a policy of one size fits all. 

Mr. JANKOVSKY. The BLM is trying to institute a policy of one 

size fits all. That is correct. 

Mr. TIPTON. Now, one thing that concerns me, as part of your 

testimony you talked about some data that has been withheld. By 

the way, how much money has Garfield County spent? Not Federal 

money, but Garfield County money residents spent. 

Mr. JANKOVSKY. Compared to the State’s, it is not a lot. But we 

have a five-member team, besides myself, working on sage grouse. 

We have our director of community develop as the quarterback, so 

to speak, of that team. We have hired four——

Mr. TIPTON. And what is the dollar amount of the——

Mr. JANKOVSKY. About $200,000. 

Mr. TIPTON. That is a pretty big number in Western Colorado, 

isn’t it? 

Mr. JANKOVSKY. That is a significant amount of money, yes. 

Mr. TIPTON. OK. So you are putting forward local people’s money 

to be able to try and address a national agenda that is being put 

forward. And you have requested additional data to actually try 

and help move the ball forward. What data have you not received? 

Why are they not trying to help you achieve that goal? 

Mr. JANKOVSKY. Well, we have asked Fish and Wildlife for the 

historical count data from 1965 to 2007, so we can get an idea of 

how many sage grouse are actually out there, and how they were 

counted. The latest number we had from—I think it was 2007 was 

535,000 sage grouse, which is a lot of birds. And also, between 2001 

and 2005, I believe, 200,000 birds were harvested through hunting. 

So, I guess I am concerned that this may be a little bit of an abuse 

of——

Mr. TIPTON. Let’s understand this. The Federal Government is 

going to be listing the sage grouse and is issuing hunting permits. 

Mr. JANKOVSKY. Well, the States are issuing hunting permits. 

73

Mr. TIPTON. And States are issuing the hunting permits. 

Mr. JANKOVSKY. Yes. 

Mr. TIPTON. A little bit of a conflict in terms of some of the policy 

that is going to be there. 

Let’s look at this from maybe that little broader view. Western 

Colorado, approximately 70 percent of the land is either Federal, 

State, or tribal lands right now. Some of the critical habitat that 

is going to be proposed, does that encroach onto private lands, as 

well? 

Mr. JANKOVSKY. Yes. In our county there are 220,000 acres. And 

of that, 80,000 is Federal land and about another 40,000 is private 

lands with Federal minerals. So it is about 50/50 in our county. 

Mr. TIPTON. So when that private land is moved into potential 

critical habitat, is that going to impact the ability of struggling 

farmers and ranchers to be able to grow crops, to be able to raise 

animals? 

Mr. JANKOVSKY. Yes, it will. 

Mr. TIPTON. It will. What was the impact when we reintroduced 

some of the predators—riparian, wolves, and the like—in terms of 

impact on the sage grouse species? Any idea? 

Mr. JANKOVSKY. Well, the impact for us is not so much reintroduction as it is primarily ravens and coyotes, they are the primary 

predators in our area. 

Mr. TIPTON. Here is one of the issues I think I have with the 

broad brush stroke coming out of the BLM. You talked about some 

of the numbers that are going to be over in Garfield County. Let’s 

take 100,000 birds, just as a theoretical example. That would be recovery, let’s say, in Garfield County. You get 110,000. Based on the 

current BLM policy, are you still going to be restricted? 

Mr. JANKOVSKY. If——

Mr. TIPTON. You would be, wouldn’t you? 

Mr. JANKOVSKY. If the policy goes through as it is through the 

NTT report, we would be restricted. 

Mr. TIPTON. So, effectively, what we are doing is we are creating 

a policy where we can’t win, even when we win. They will not be 

delisted in Wyoming or in Montana or in portions of Colorado, once 

we have actually achieved recovery. Is that accurate? 

Mr. JANKOVSKY. That is accurate, yes. 

Mr. TIPTON. Does that provide a real challenge for you, when you 

are trying to be able to provide for your county, and particularly 

when we see some of the unemployment rates in our area? 

Mr. JANKOVSKY. Yes, it does. If the NTT report went through, or 

if the bird was listed, it would harm our county’s economy, and we 

would lose jobs, we would lose tax revenues and royalties, as well. 

Mr. TIPTON. Is BLM trying to do anything to help resolve these 

conflicts with you? 

Mr. JANKOVSKY. It has taken a while, because we have been so 

persistent. They have actually started to listen to us, to some extent. So we are working through the system. 

Mr. TIPTON. I yield back, Mr. Chairman. 

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

Chair recognizes the gentleman from Idaho, Mr. Labrador. 

Mr. LABRADOR. Thank you, Mr. Chairman. Dr. Noss, you have 

mentioned several times today that it has been amazing that the 

74

ESA has been as successful as it has been. Why do you keep repeating that? Can you further elucidate us on what you mean by 

that? 

Dr. NOSS. What I mean is very simply that the threats that led 

to those species being listed in the first place have not abated. And 

most of them have actually gotten worse since the Endangered Species Act was passed and those species were listed. 

So, the other part of the question is that we haven’t had the 

money given to the Fish and Wildlife Service and the National Marine Fisheries Service to recover species as the Act at least intends 

in spirit. 

Mr. LABRADOR. So——

Dr. NOSS. It doesn’t give clear guidance, as Mr. Parenteau mentioned. 

Mr. LABRADOR. So you are asking for more money. Could the answer just be that nature takes care of itself, that maybe we don’t 

know more than nature does? 

You know, your answer is to come from up on top, telling nature 

what it needs to do and telling humans what they need to do, as 

opposed to just realizing—and like Mr. Costa just asked—that 

some species are going to go and some species are going to stay, 

and that is just a regular evolutionary process. And you don’t know 

more than everybody else——

Dr. NOSS. This is way out of the ballpark of natural evolution. 

Mr. LABRADOR. Yes. 

Dr. NOSS. It is basically—you know, nature is still out there, but 

it has been overwhelmed by the human population and our consumption. 

Mr. LABRADOR. OK. You said, ‘‘According to the’’——

Dr. NOSS. They are not——

Mr. LABRADOR.—‘‘Society’’—you made a statement on June 19, 

2004 that, ‘‘The collective needs of non-human species must take 

precedence over the needs and desires of humans.’’ Do you still 

stand by that? 

Dr. NOSS. I do. 

Mr. LABRADOR. Mr. Parenteau, in 1998, a William and Mary Law 

Review article entitled, ‘‘Rearranging the Deck Chairs: Endangered 

Species Act Reforms in an Era of Mass Extinction,’’ you wrote that, 

‘‘Humanity threatens to turn the earth into a planet of weeds.’’ Do 

you still stand by that statement? 

Mr. PARENTEAU. That is what the science suggests. 

Mr. LABRADOR. That is what the science suggests? And have either of you received or represented plaintiffs that have received attorneys fees paid for by the Federal Government? 

Mr. PARENTEAU. I have. 

Dr. NOSS. Have I received what kind——

Mr. LABRADOR. Payments or represented plaintiffs that have received attorneys fees from the Federal Government. 

Dr. NOSS. No. 

Mr. LABRADOR. How many ESA lawsuits have you personally 

been party to, Mr. Parenteau? 

Mr. PARENTEAU. Representing interests? 

Mr. LABRADOR. Yes. 

75

Mr. PARENTEAU. Didn’t do a calculation before I came here, 

but——

Mr. LABRADOR. Approximately. 

Mr. PARENTEAU. Over 40 years? My goodness. Twenty? 

Mr. LABRADOR. OK, Mr. Parenteau, will the Center for Biological 

Diversity or any other groups you represented endorse any legislation that would require public disclosure the amount of money it 

receives from taxpayers through EG and the judgment fund? 

Mr. PARENTEAU. That was for me? 

Mr. LABRADOR. Yes. 

Mr. PARENTEAU. I didn’t get the question. Do they have to report 

it? Yes. It is 501(c)(3) 1099 form. 

Mr. LABRADOR. And they report currently how much money they 

receive from the Federal Government? 

Mr. PARENTEAU. Yes, they do. 

Mr. LABRADOR. OK. In 2004 you authored an article for the Duke 

Environmental Law Policy Forum entitled, ‘‘Anything Industry 

Wants: Environmental Policy Under Bush II,’’ in which you lamented that the Bush Administration was using sweetheart deals 

routinely to make major policy decisions without public participation and congressional review. You remember that article, I assume. 

Mr. PARENTEAU. I certainly do. 

Mr. LABRADOR. You say as much in your testimony about sueand-settle. But today you are saying that sue-and-settle is an old 

story. Yet I am wondering why you decry this tactic in one instance 

and you defend it in another instance. 

Mr. PARENTEAU. I decry it in both. And some of the sweetheart 

deals in the Bush Administration were turned aside by the courts. 

So that was my reason for saying that I don’t think you can charge 

the courts with an act of collusion in these cases. 

One case in particular involving wilderness study areas in Utah 

comes to mind. And there was a sweetheart deal, there was no public participation. And the Bush Administration was about to cede 

Federal rights to millions of acres of land in an agreement that was 

about to be entered by the court. Environmental groups got wind 

of it, intervened, and stopped it. 

So, I am consistent in saying I don’t think the courts are 

handmaidens in implementing sweetheart deals engineered by interest groups on either side, whether it is industry or environmental groups. I don’t think the court is doing that——

Mr. LABRADOR. Shouldn’t the States and citizens that will actually have to bear the burden of these litigations and these listings 

have an opportunity to weigh in on these decisions? 

Mr. PARENTEAU. They have that opportunity. 

Mr. LABRADOR. Now, do you feel that this Administration is—

going back to the Utah example that you just raised, do you feel 

that this Administration’s Interior settlements with CBD and 

WEG, without any public involvement, are similarly outrageous, or 

that they constitute the camel’s nose under a tent, as you have said 

about the Bush Administration? 

Mr. PARENTEAU. No, because those agreements set a time table 

for decisionmaking. They make no decisions whatsoever about 

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tunity for public review and comment in the rulemaking process 

that has to be done for each and every one of the species——

Mr. LABRADOR. So when the ultimate decision isn’t in accordance 

with your stated views, then it is OK. But when it is not in accordance with your stated views, then it is not OK. Thank you. 

Mr. PARENTEAU. Well, that is a misrepresentation of what I said. 

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

Chair recognizes the gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. And I appreciate the 

witnesses being here. Having been a former judge, having been to 

conferences with hundreds and hundreds of judges, having both 

Federal and State judge friends, I find it interesting somebody 

could be involved in the litigation process and, like under Bush, be 

concerned about the sue-and-settle process, even though some of 

the litigation or the proposed judgments might be turned back, and 

be just indignant that it is an insult to our judges to say that they 

would rubber-stamp what the parties propose. 

I would go through proposed judgments, but I had so many 

judges, both State and Federal, who would say, ‘‘If the parties 

agree, then sign the judgment and let it go.’’ And obviously, I am 

glad Dr. Parenteau is here so that he could find out that there are 

many judges that feel that way. If the parties agree, sign the judgment, let it go. I am glad that in your 20 cases you have not been 

exposed to that, but I can tell you it does happen. 

And then also, I love hearing such optimism, those who want to 

preserve species are open to reform of the Endangered Species Act. 

And I thought that was the case too, until I became a freshman 

in Congress in 2005 and 2006, and I saw our Chairman, Richard 

Pombo, doing everything he could to reach out on both sides of the 

aisle to people on both sides of issues, more than two sides, ‘‘Give 

us your input,’’ and he tried to take that, and we tried to craft an 

Endangered Species Act reform that everybody could be happy 

with. But some of us were concerned that we had only been able 

to delist less than 1 percent of those that we were charged with 

trying to preserve, and that surely there is a better way. 

And when we had information from land owners who said, ‘‘You 

will take my land and never give me a dime in return, you take 

it by saying I can never use it again once a species is listed as endangered,’’ so we thought, OK, a good thing here, maybe a good 

compromise, let’s pay the land owner so they wouldn’t be tempted 

to what we heard was a shoot, shovel, and shut-up type of approach to the endangered species that, if somebody was going to go 

broke if an endangered species was found on their land, they would 

rather kill the endangered species, bury it, and keep their mouth 

shut than lose their livelihood and their family go broke and their 

local community have no tax income coming in. 

So, we thought, gosh, maybe—all right. This would be a great 

way to reach out. Let’s have the Federal Government pay people 

for their land, because it sure seems like a taking. I was shocked, 

as I am sure you would have been, if you had been trying to reach 

out on both sides of the aisle, as I tried to help Chairman Pombo. 

He had me come over to his office. ‘‘Let’s call people. Let’s see what 

we can work out.’’ And there were people who did not want a reform whatsoever. 

77

And on the night before the vote, really trying to reform, people 

we had reached out to, we had included their amendments trying 

to work out, they crafted a new deal, and were proposing that, and 

said, ‘‘This would be much better.’’ It was a slap in the face. And 

not only that, the Sierra Club and all these other groups moved 

into his district and started crafting lies about the man so they 

could defeat him for having the nerve to try to reach some kind of 

agreement on endangered species reform. 

We have preserved some species, but I would tell you we can do 

so much better than we have if people would get off their ideological horses and get down on the ground with the rest of the local 

people and the local government. Not just State and Federal that 

do some sweet deal, but the local land owners. 

And don’t think that we can do so much better if we never have 

private property again. I am telling you this—maybe I should have 

testified, because obviously I have more experience with this than 

people that have been in the courtroom or—and not known how 

judges actually work things, or not known what it was to actually 

craft a deal, Mr. Chairman. But I saw a good man destroyed because he reached out and he tried to reform the Endangered Species. And I hope it doesn’t happen here, because we need to preserve better. 

And this final comment, Mr. Chairman. I am struck by how 

many people, liberal luminaries, say they believe in evolution and 

then spend the rest of their life trying to prevent it. Thank you, 

I yield back. 

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

Chair recognizes the gentleman from Florida, Mr. Southerland. 

Mr. SOUTHERLAND. Thank you, Mr. Chairman. I know that we 

have heard a lot today regarding the partnerships. I know, Dr. 

Noss, you have talked about those and have been in favor of those, 

and say that there are many of those partnerships between Federal 

and State governments working well in the implementation of the 

Endangered Species Act. 

I know that—I wanted just to ask a question that I have written 

down here. You mentioned the need to allow States to voluntarily 

manage listed species. This is to Mr. Ferrell. You mentioned the 

need to allow States to voluntarily manage listed species. This 

management is going on right now between the Fish and Wildlife 

Service of Florida and the Wildlife Conservation Commission. In 

fact, in a recent joint column authored by individuals from both 

agencies, it was called the first of its kind. 

However, the Center for Biological Diversity recently filed its intent to sue over this arrangement. When a Republican Governor 

and the Obama Administration can agree on such an approach, yet 

is sued by an entity whose headquarters are not even in Florida, 

doesn’t that speak volumes to others who want to try to engage 

these partnerships that obviously Dr. Noss has agreed with are so 

beneficial? 

Mr. FERRELL. Absolutely. I mean there is a huge chilling effect 

for the rest of us, if we can’t enter into agreements that are providing constructive conservation without being sued. 

Mr. SOUTHERLAND. Dr. Noss, you are familiar with this. I mean, 

obviously, you are from Florida. 

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Dr. NOSS. Yes. 

Mr. SOUTHERLAND. So, I mean, you are familiar with this agreement. Do you approve of this agreement? 

Dr. NOSS. I have read the agreement. It has been a few months. 

There are some parts in it that I am worried about. 

You have to remember, the Center for Biological Diversity—for 

one thing, I don’t agree with everything that they do, but they have 

played an extremely valuable role. There is a watchdog. And I 

think, in the Florida case, those few elements of the cooperative 

agreement that they see as opening up too many loopholes, they 

are concerned about those. And I would gather that is why they 

have sued, although I have not talked to anybody in that group 

about——

Mr. SOUTHERLAND. But, I mean, are you in favor of the—I 

mean——

Dr. NOSS. I am in—definitely, in principle, in favor of the cooperative agreement. And most of it that I have read I think is beneficial, yes. 

Mr. SOUTHERLAND. I know that—I would like to ask Mr. 

Parenteau. I know you are an advisory board member to the Center of Biological Diversity. And I know that Mr. Labrador questioned you on your history of lawsuits and so forth. Did you, in 

your capacity as a board member, did you advise the Center for Biological Diversity, to pursue this litigation that obviously Dr. Noss 

seems to agree with? 

Mr. PARENTEAU. No, I did not. 

Mr. SOUTHERLAND. So you didn’t have any—you didn’t weigh in 

on this at all. 

Mr. PARENTEAU. No, my role is very limited to the climate work 

they do. 

Mr. SOUTHERLAND. OK, OK. I know that it appears to me to be 

almost litigation thuggery when you have an opportunity to—there 

are so many limited resources, both at the Federal and the State 

level. I know, Mr. Parenteau, you mentioned that we need more resources. I think the American people would say that the Department of Justice and the IRS and HHS have had plenty of resources, that resources aren’t their problem. It seems to be an integrity issue. 

I am amazed, as I sit here in this Committee and we talk about 

the Forest Service and all the money they have, and all the lands 

they have, and yet we have more timber rotting in the national forests than we harvest. And as a result, every year we see homes, 

hundreds upon hundreds of homes, go up in flames because of mismanagement. 

We see NOAA move $300 million out of research to put a satellite into space—obviously, with no guarantee that we can even 

get it there, and then come back and ask for more research dollars, 

and saying that we don’t have good data. 

And yet, artificial reefs planted in the Gulf of Mexico that reef 

fish call home are not counted in fish surveys because they are not 

considered natural habitat. However, when you bring that fish over 

your transom, that fish is automatically counted for sure against 

your bag limit. 

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You look at the GSA and you look at the billions of square foot 

of buildings that are mismanaged or vacant and crumbling and 

turning areas into blight. 

You know, I don’t see the money problem here. What I see is a 

Federal Government that, in every area you look at, is too large. 

It cannot be managed. And I would agree that it can’t be managed, 

no matter who is in charge. It is too big. And yet, you know, we 

have opportunities for partnerships that make sense. And yet we 

have organizations like the one, sir, that you sit on as an advisory 

committee, that want to continue to make sure that we don’t take 

advantage of these kind of partnerships. 

I have to tell you, it is very difficult to consider some of the 

things you say, when I know you have been a part of these lawsuits. I mean it is amazing. If the money we have is limited, then 

clearly, to gum up the system through the litigation thuggery, as 

I made reference to, is not productive. Unless, obviously, your vision is different than common sense and efficiency. So——

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

Chair recognizes the gentleman from California, Mr. LaMalfa. 

Mr. LAMALFA. Thank you, Mr. Chairman. You know, I come here 

as a freshman from a background in farming in Northern California, and our family has been at it for about 82, 83 years now. 

And so our deal is that we preserve our assets, we preserve the 

land. And we use it well and wisely, and it has been successful all 

this time. 

So, we like the species, we take care of them. If there is a gopher 

snake going across our dirt road, you stop and wait for it to go 

across, because he has a part in the ecology, too. There is a mother 

mallard going across the county road there—for some reason the 

water on the other side of the road is better on this side, she wants 

to take her baby ducklings and amble across the road—you stop 

your truck so she can get across, maybe flag other people down so 

they don’t run over the baby ducks. So, we are part of this whole 

ecology there, and we do like to care for and preserve it, as farmers. It is smart, and it is the right thing. 

But we get hit with all the different agencies and all the different groups coming after us all the time, suing. My district is 

very rural, so we have timber, we have mining, we have agriculture, farming and ranching. They are good people, they just 

want to figure out how to get along and comply. People have been 

farming and ranching 160 years in some of these areas. And all 

they get is yet another alphabet soup of regulators coming in and 

changing the rules on them. They put in fish screens, they re-engineer their waterways. They put up fences along creeks to keep the 

cattle out. They do all these things, and it is never good enough. 

So, what you have here is a trust problem. You have an issue 

where they see yet another agency showing up with a badge and 

a gun, trying to have a dialog with them, and all they get is more 

regulations and even threats. When I see something like this here 

that says maybe we need to do a mega-listing at one time, you 

know, 21 species in Texas, 30 in Florida, 24 in California, 69 in Hawaii—we might as well just write off Hawaii, as far as human activity—that sort of stuff makes people shudder, as to the idea that 

80

they are going to continue doing any kind of human activity. The 

United States of Habitat Preservation, the way it goes. 

And then let’s look at the Endangered Species Act success for 40 

years now. When you have a less-than-3 percent—perhaps even 1 

percent recovery after all the tens of billion dollars spent by government, and probably the hundreds of billions of dollars, maybe 

trillions, of economic activity that has been lost over that 40 years, 

do we call that a success? Because there is always a balance between cost and effect, cost and benefit ratio. You might say, well, 

any species can’t be lost, because that is too high a cost. 

Well, we were talking about the natural inclination things a 

while ago, and a gentleman mentioned over 65 million years. I 

don’t know how we can track data of 65 million years of species recovery and loss when, at best, we have really only been doing this 

to the intensity we have for maybe for 40 or 50 years with data—

questionable data in a lot of cases, at that. How in the world are 

we supposed to really know what the trends are for more than the 

last 30 to 40, 50 years of species increase or decrease, as opposed 

to thousands of years, since Europeans have only been in North 

America for a couple hundred years. 

Has anybody really kept track of this? Do we really know? But 

we can do the best we can. And so, if we work with the stewards 

of the land, the farmers, the ranchers, the timber people, the miners—for products people still need and are still going to have to 

come from somewhere, we are not using any less paper and wood 

products yet. The forests are practically shut down in the Western 

States, in California. We would rather watch them burn, I guess. 

And then, when you have a burn, you have a catastrophe that, as 

they are so overloaded with growth that they become moonscapes 

afterwards with the erosion, all the species are out there dying in 

the fire. Is that successful? Are we getting there with what we are 

doing? We need to take a really big relook at how we do business 

here. 

And so, we have folks like—I can go to an article that was just 

published in Forbes a couple days ago. If I am being redundant 

with this, please forgive me, I was in an ag meeting. But it was 

in Forbes on the 27th about the Center for Biological Diversity. 

And if you don’t mind, I am just going to quote a little bit here. 

The quote is by a gentleman named Mr. Kieran Suckling from 

the CBD in talking about organizations’ hiring of activities who 

lack science degrees. Does that hurt the CBD’s effectiveness, he is 

asked. He says, ‘‘No. It was a key to our success. I think the 

professionalization of the environmental movement has injured it 

greatly. These kids get degrees in environmental conservation and 

wildlife management, come looking for jobs in environmental movement. They have bought into resource management values and 

multiple use by the time they graduate. I am more interested in 

hiring philosophers, linguists, and poets. The core talent of a successful environmental activist is not science and law, it is campaigning instinct, which makes it more successful in the battle 

against people that produce.’’

So, it isn’t really a scientific-based thing. They don’t want the scientists. They want people that can campaign and fight against 

81

what we are talking about with the people in rural America. And 

I can go on and on about that. 

But we to—just a big shift in the way we are thinking about 

that. Because if people in rural America that are the producers, 

they don’t trust you all any more in the environmental movement, 

or a lot in the agency movement. We want to be able to help and 

be cooperative, but we can’t under these rules. 

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

to thank the panelists for being here for this hearing, these 21⁄2

hours, and I want to thank all of the Members on both sides of the 

aisle for their participation. 

I just want to give you my impression of what I heard today. 

First of all, I heard, as I stated earlier, nobody here wants to see 

a species go extinct. That stands to reason. But what apparently 

the issue is in how you attain that. And what we heard on this 

panel is a number of ways it is being done on the local level, 

whether you are talking about the State level, the county level, or 

the tribal level, there is an effort in order to make sure that species 

do not go extinct. 

And even, we found in cross examination, or some questioning, 

particularly from the gentlelady from Wyoming, about groups that 

are involved with that. And the irony, at least as it relates to Wyoming with the questioning that Mrs. Lummis had, was there are 

private groups that are involved with this. But the groups that are 

involved in the litigation that we see, especially this major, major 

settlement case, they are not involved in recovery. At least there 

is no evidence, at least in Wyoming, with the testimony we heard. 

And yet, that seems to be a problem. 

Now, on the other hand, I’m very pleased to hear that the Act 

is basically flawed because there is no recovery aspect to it, said 

in testimony of Mr. Parenteau. I am very pleased to hear that. 

Now, the Act hasn’t been reauthorized for 25 years. That is a quarter of a century. My impression—Mr. Gohmert, I think, said it in 

a different way, but I certainly agree with his remarks—is that 

this is politically driven. And I will say the environmental left does 

not want to sit down. 

So, Mr. Parenteau, I am going to give you some homework. You 

stated in testimony here that you think there are some environmental groups that would be willing to sit down and look at the 

recovery aspect and some of the other things that you mentioned. 

I think there is probably some common ground. We heard that 

from the other side of the aisle, certainly from our side of the aisle. 

So my homework to you, Mr. Parenteau, within the next 30 days, 

would you give me a list of those environmental groups that would 

be willing to sit down? 

Mr. PARENTEAU. With the precondition that the Act as it is is not 

up for weakening. 

The CHAIRMAN. Listen. 

Mr. PARENTEAU. Strengthening, that is the key. 

The CHAIRMAN. Listen, the——

Mr. PARENTEAU. Strengthening. 

The CHAIRMAN. Well, the idea is—see, this is the thing that bugs 

me. All the sudden there is a precondition, and all I am asking you, 

really, is to say which environmental groups will want to sit down. 

82

Mr. PARENTEAU. I will. 

The CHAIRMAN. And you already—and so you have to have a precondition before we even agree on something as basic as that? 

Mr. PARENTEAU. Yes——

The CHAIRMAN. There is a problem. 

Mr. PARENTEAU [continuing]. Because they don’t trust this Committee to do what is needed for recovery. That is why. 

The CHAIRMAN. Wait a minute, wait a minute. The premise that 

we said and what we heard all the way through is nobody wants 

to see a species go extinct. We want to recover a species. Who is 

opposed to that? 

Mr. PARENTEAU. It is not what we say, Mr. Chairman, it is what 

we do. And what we are doing is driving species——

The CHAIRMAN. Mr. Parenteau, I have the gavel here, and I am 

giving you homework. And if you want to respond to that, that is 

fine. That is fine. In fact, I welcome it. But to suggest, when I am 

just simply asking you for the group that would want to talk, and 

you come up with conditions, and then accuse this Committee of 

not wanting to—or of lack of trust, defies logic to me. 

I was in the Congress—not on this Committee at the time—when 

Mr. Pombo went through this. And I know Mr. Pombo very, very 

well. He got annihilated in the political process. Nobody can deny 

that. 

All I want from you is, within 30 days, you give me a list of environmental groups that would be willing to sit down and talk. And 

maybe, maybe, in the near future we can reauthorize this Act to 

focus on recovery, because that is what the intent, in my view, was 

of the Endangered Species Act right from the get-go. 

Again, I want to thank all of you, particularly those that came, 

and particularly those from the Northwest, Ms. Brigham, especially 

testifying on the record here of your efforts to recover species and 

doing it with collaboration with people that are affected by that. 

With that, if there is no further business to come before the Committee, the Committee stands adjourned. 

[Whereupon, at 12:36 p.m., the Committee was adjourned.]

[Additional material submitted for the record follows:]

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

Committee on Natural Resources

The title of this hearing suggests that state and local governments have forever 

been successful stewards of species, and that federal protection of biodiversity under 

the Endangered Species Act has only produced protracted litigation. Nothing could 

be farther from the truth. 

Before the ESA granted federal protection to imperiled fauna and flora, state 

wildlife management policies had pushed species like the American alligator, gray 

wolf, and grizzly bear to the brink of extinction. Now, because of the ESA, those 

species and many others have either recovered, or are on that path. 

All Americans, no matter if they live in Springfield, Massachusetts or Springfield, 

Missouri; Portland, Maine or Portland, Oregon, have a stake in conserving biodiversity. From this bank of genetic material we can draw cures for diseases, industrial 

innovations, and improvements to agriculture to enhance our economy and our quality of life. 

The ESA guards this bank, and ensures that rather than drawing down our principle, we will accrue interest by making economic development compatible with the 

survival and restoration of species. Under the ESA, state and local governments can 

assist in, and even lead these efforts within their borders. 

However, animals and plants do not recognize political boundaries: we need the 

ESA because we need assurance that when a species moves from one state to anVerDate 0ct 09 2002 09:43 Nov 26, 2013 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6621 Y:\02FISH~1\02MY16\81318.TXT MARK
83

other it receives a consistently high level of protection and not disparate treatment 

that harms its chances for survival. States lack the ability to address wildlife conservation outside their borders, as well as the ability to appropriately account for 

the legitimate species conservation interests of people who live in other states. 

The ESA is one of the most effective and popular environmental laws not only 

in our country, but in the world. Even in the face of massive and ongoing loss of 

habitat to haphazard development, 99 percent of species afforded the Act’s protections over the past 40 years are still surviving today. Scientists estimate that more 

than 170 species would have gone extinct over that period if not for the ESA. We 

need to keep the ESA strong and give appropriate support to the federal agencies 

that are working diligently with states to facilitate development projects while accounting for biodiversity conservation.

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