House Hearing, 112TH Congress - The Endangered Species Act: Reviewing The Nexus of Science and Policy

THE ENDANGERED SPECIES ACT:
REVIEWING THE NEXUS

OF SCIENCE AND POLICY
HEARING
BEFORE THE
SUBCOMMITTEE ON INVESTIGATIONS AND

OVERSIGHT
COMMITTEE ON SCIENCE, SPACE, AND

TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
THURSDAY, OCTOBER 13, 2011
Serial No. 11244

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COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

HON. RALPH M. HALL, Texas, Chair
F. JAMES SENSENBRENNER, JR.,
EDDIE BERNICE JOHNSON, Texas
Wisconsin
JERRY F. COSTELLO, Illinois
LAMAR S. SMITH, Texas
LYNN C. WOOLSEY, California
DANA ROHRABACHER, California
ZOE LOFGREN, California
ROSCOE G. BARTLETT, Maryland
BRAD MILLER, North Carolina
FRANK D. LUCAS, Oklahoma
DANIEL LIPINSKI, Illinois
JUDY BIGGERT, Illinois
GABRIELLE GIFFORDS, Arizona
W. TODD AKIN, Missouri
DONNA F. EDWARDS, Maryland
RANDY NEUGEBAUER, Texas
MARCIA L. FUDGE, Ohio
N, New Mexico
MICHAEL T. MCCAUL, Texas
BEN R. LUJA
PAUL C. BROUN, Georgia
PAUL D. TONKO, New York
SANDY ADAMS, Florida
JERRY MCNERNEY, California
JOHN P. SARBANES, Maryland
BENJAMIN QUAYLE, Arizona
TERRI A. SEWELL, Alabama
CHARLES J. CHUCK FLEISCHMANN,
FREDERICA S. WILSON, Florida
Tennessee
HANSEN CLARKE, Michigan
E. SCOTT RIGELL, Virginia
VACANCY
STEVEN M. PALAZZO, Mississippi
MO BROOKS, Alabama
ANDY HARRIS, Maryland
RANDY HULTGREN, Illinois
CHIP CRAVAACK, Minnesota
LARRY BUCSHON, Indiana
DAN BENISHEK, Michigan
VACANCY
SUBCOMMITTEE
ON
INVESTIGATIONS
AND
OVERSIGHT
HON. PAUL C. BROUN, Georgia, Chair

F. JAMES SENSENBRENNER, JR.,
DONNA F. EDWARDS, Maryland
Wisconsin
ZOE LOFGREN, California
SANDY ADAMS, Florida
BRAD MILLER, North Carolina
RANDY HULTGREN, Illinois
JERRY MCNERNEY, California
LARRY BUCSHON, Indiana
DAN BENISHEK, Michigan
VACANCY
EDDIE BERNICE JOHNSON, Texas
RALPH M. HALL, Texas
(II)
CONTENTS
Thursday, October 13, 2011
Page
Witness List .............................................................................................................

Hearing Charter ......................................................................................................
2
3
Opening Statements
Statement by Representative Paul C. Broun, Chairman, Subcommittee on
Investigations and Oversight, Committee on Science, Space, and Technology, U.S. House of Representatives ...............................................................
Written Statement ............................................................................................
Statement by Representative Donna F. Edwards, Ranking Minority Member,
Subcommittee on Investigations and Oversight, Committee on Science,
Space, and Technology, U.S. House of Representatives ....................................
9
10
11
12
Witnesses:
Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and
Wildlife Service
Oral Statement .................................................................................................
The Honorable Craig Manson, General Counsel, Westlands Water District
Oral Statement .................................................................................................
Mr. Douglas Vincent-Lang, Senior Biologist, Alaska Department of Fish and
Game
Oral Statement .................................................................................................
Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable Natural Resources
Oral Statement .................................................................................................
Mr. Jonathan Adler, Professor, Case Western Reserve University School of
Law
Oral Statement .................................................................................................
Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity
Program, Union of Concerned Scientists
Oral Statement .................................................................................................
14
16
24
25
29
31
37
38
43
45
50
52
Appendix I: Answers to Post-Hearing Questions

Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and
Wildlife Service ....................................................................................................
The Honorable Craig Manson, General Counsel, Westlands Water District ......
Game .....................................................................................................................
Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable Natural Resources ...................................................................................................................
(III)
82
90
94
98
IV
Page
Mr. Jonathan Adler, Professor, Case Western Reserve University School of

Law ........................................................................................................................
101
Appendix II: Additional Material for the Record

Representative Randy Neugebauer, Subcommittee on Investigations and
Oversight, Committee on Science, Space, and Technology, U.S. House of
Representatives ....................................................................................................
Photograph submitted for the record by Representative Dan Benishek .............
United States Department of the Interior, Office of Inspector Generals Report of Investigation: The Endangered Species Act and the Conflict between
Science and Policy, submitted for the record by Representative Brad Miller ..........................................................................................................................
Article entitled, Email Reveals State Dispute Over Polar Bear Listing,
submitted for the record by Representative Paul Tonko ..................................
Article entitled, State Policy Leads Beluga Team to Remove Alaska Scientists, submitted for the record by Representative Paul Tonko ...................
The Delta Smelt Cases, San Luis & Delta-Mendota Water Authority, et
al. v. Kenneth Lee Salazar, et al., 09CV407, Reporters Transcript of
Proceedings, September 16, 2011 .......................................................................
104
105
106
112
115
120
THE ENDANGERED SPECIES ACT:

REVIEWING THE NEXUS OF SCIENCE AND
POLICY
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT,
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:07 a.m., in Room
2318 of the Rayburn House Office Building, Hon. Paul Broun
[Chairman of the Subcommittee] presiding.
(1)
3
HEARING CHARTER
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

SUBCOMMITTEE ON INVESTIGATIONS & OVERSIGHT
U.S. HOUSE OF REPRESENTATIVES
The Endangered Species Act: Reviewing the

Nexus of Science and Policy
10:00 A.M. 12:00 P.M.
2318 RAYBURN HOUSE OFFICE BUILDING
Purpose
On October 13, 2011, the Subcommittee on Investigations and Oversight will hold
a hearing on the nexus of science and policy related to the Endangered Species Act
(ESA) 1. The purpose of the hearing is to highlight the combination of science and
policy decisions that are made under the ESA. Numerous judicial disputes over
ESA-related actions highlight the challenges in weighing best available science
against other policy considerations, often under short deadlines. Congress has frequently considered changes to the ESA as a whole, and has also enacted speciesspecific ESA legislation, most recently with 2011 legislation concerning the grey
wolf. 2
Although the ESA is designed to protect species, its application is most visible
when federally imposed plans to protect and recover a species restrict the actions
of private citizens and other entities. For example, landowners may not be able to
use their property in a manner they had planned and farmers may not be able to
use as much of a rivers water as they need. Since takings claims are rarely successful, the science used to make ESA decisions is critical.
Background
Enacted in 1973 and amended on several occasions, the Endangered Species Act
is designed to ensure the continued existence of species of plants and animals that
are at risk of extinction. The Act sets out a specific timeline for action by federal
agencies and requires agency officials to make decisions based upon the best science
available under specific deadlines. The timelines cannot be waived or extended in
an effort to allow for the development of additional science related to a species in
question. 3 This results in the focus of public and federal review primarily upon the
science used by proponents for a particular action, typically a petition for a new listing.
Almost 1400 U.S. species of plants and animals have been listed under the ESA
as threatened or endangered, resulting in the implementation of 1100 active recovery plans. 4 A small number of species have been delisted, either due to successful
recoveries, extinction, or due to data errors in the original listing decision. 5 The majority of listed species have remained at their original listing level of endangered
or threatened. The American bald eagle is viewed by many as the highest profile
species to go through the Endangered Species Act process. After federal protections
were enacted in 1940 prior to the enactment of the ESA, the bald eagle population
of the lower 48 states was listed as endangered in 1967 under a precursor to the
ESA, the Endangered Species Preservation Act of 1966, downlisted to threatened in
1995, and delisted all together in 2007. 6
In a recent high profile action in April 2011, the President signed into law a provision that required the FWS to reissue an earlier final rule published on April 2,
2009 concerning the Northern Rocky Mountain population of the grey wolf as a dis1 16
U.S.C. 15311544.
VII, Section 1713, of P.L. 11210.
U.S.C. 1533(b) (3).
4 The current number of endangered and threatened species can be found at http://
ecos.fws.gov/tesslpublic/pub/boxScore.jsp.
5 See http://ecos.fws.gov/tesslpublic/pub/delisting Report.jsp for the complete list.
6 See http://www.fws.gov/migratorybirds/baldeagle.htm
2 Title
2 16
4
tinct population segment. 7 The original rule delisted certain species of the grey
wolf, but the rule was set aside as a result of federal litigation brought by several
environmental groups. 8 The legislation required the FWS to republish its final rule
and prohibited judicial review of the action. It is important to note that the FWS
initially determined that the delisting decision was appropriate and the 2011 legislation did not override FWS decisions for this species. 9
Although the focus of the ESA is preventing the further decline of species populations, significant societal impacts occur when a species is listed as threatened or
endangered. Various uses of lands and waters identified as critical habitats for endangered species are restricted. These restrictions make the accuracy of science concerning the status of a particular species crucial to making appropriate policy decisions. If critical habitat designations are not appropriately sized or scoped, then either too much or too little protection for a particular species will be applied. If usage
restrictions are too small in size and scope, this could result in additional losses to
the species. If restrictions are too large in size and scale, users of a particular area
such as home owners or farmers could have their usage of a resource overly restricted.
The process used to list and delist species
The Fish and Wildlife Service and the National Marine Fisheries Service are responsible for the ultimate listing of a species as threatened or endangered through
the publication of a final notice in the Federal Register. Initial steps to determine
whether a new listing is warranted or an existing listing should be modified can
occur within these agencies for two reasons:
1. If federal scientists determine that the status of a species warrants review, or
2. In response to a petition filed with the agency by an outside group.
Upon receipt of a petition filed by an outside group or an internal decision that
a listing review should be considered, the agency has 90 days to make an initial
determination after publication in the Federal Register. Interested parties can submit additional information regarding a listing review and/or comment upon data included in the initial Federal Register notice. Within one year of publication in the
Federal Register, the agency is statutorily required to make a final determination.
Under existing statute, listed species are also subject to ongoing review of their status every five years without the need for petitions.
The FWS and NMFS have increasingly used their statutory authority to determine that the listing of a species is warranted, but precluded. 10 This status means
that the listing of a species is warranted based upon available science, but that
other species have a greater priority for protection. No protections apply specifically
under the Endangered Species Act for species determined to be warranted, but precluded although the Bureau of Land Management and the Forest Service provide
additional protections for these species under separate statutory provisions applicable only to those agencies. 11 All warranted, but precluded determinations are subject to judicial review as are ongoing agency efforts to make a final determination
for such species. Recent court litigation brought by environmental groups has focused on FWS actions, or lack thereof, to reduce the number of species identified
as warranted, but precluded.
Each species identified as warranted, but precluded is given a ranking number
known as a Listing Priority Number (LPN) from 1 to 12 that the FWS and NMFS
is supposed to use as a roadmap for identifying which species are listed first. The
LPN is based upon three factors: magnitude of the threats to the species, immediacy
as to when the threats will begin, and the importance of the species biologically. An
annual Candidate Notice of Review identifies all status changes to listed species
during the prior year and a ranking of warranted, but precluded species. The annual cumulative total of candidate listings identified as warranted, but precluded
during the past six years have numbered:
2010: 251 species
7 Section
1713 of P.L. 11210.

of Wildlife et al. v. Salazar et al., 729 F. Supp. 2d 1207 (D. Mont.).
Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct
Population Segment and To Revise the List of Endangered and Threatened Wildlife, Federal
Register 74, (2 April 2009): 15123.
10 This authority is found at 16 U.S.C. 1533(b) (3) (B).
11 The spotted owl is one example of a species that the Forest Service gave additional habitat
protection. A review of Forest Service actions regarding the spotted owl can be found at http://
www.fs.fed.us/pnw/pubs/marcot.pdf.
8 Defenders
9 Final
2009:
2008:
2007:
2006:
2005:
305
251
280
279
286
species
species
species
species
species
Biological opinions
Section 7 of the ESA requires any federal agency that seeks to undertake an action such as issuing a permit or undertaking a project that may impact an endangered species to conduct a biological assessment to identify the likely impact of its
action on an endangered species. 12 The Federal agency requesting formal consultation shall provide the Service with the best scientific and commercial data available
or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat. 13 FWS or
NOAA will review the assessment and then issue its response in the form of a biological opinion, BiOP for short. Although the document is called an opinion, it is
binding upon federal agencies and is subject to judicial review. Judicial disputes
over an endangered species that do not concern the act of listing itself often focus
on the contents of particular biological opinions. For example, recent judicial activity
noted later in this memo regarding the Delta Smelt has been focused on the biological opinions concerning minimum water flows necessary to protect the species.
Issues
Recent DOI Settlement Agreements Concerning Warranted, but Precluded Species
In 2009 and 2010, WildEarth Guardians filed ten complaints in federal court
seeking declaratory and injunctive relief alleging that the Secretary of Interior
failed to comply with a statutory duty to make 12-month findings on petitions made
by WildEarth Guardians to list 12 species as threatened or endangered under the
ESA. 14 In a May 2011 settlement between the parties to resolve the case, FWS
committed to a number of activities related to listing petitions under a set time
frame as follows:
130 of 251 outstanding listing petitions will be resolved by September 30, 2013
30 more listings petitions will be resolved by September 30, 2014
40 more listings petitions will be resolved by September 30, 2015
All 251 listing petitions will be resolved by September 30, 2016
By September 30, 2013, the Distinct Population Segment for the Canada Lynx
will be extended to include New Mexico
Decisions regarding the New Mexico Jumping Mouse 15, the Greater Sage
Grouse 16, and the Sonoran Desert Tortoise 17 will be made by specific dates
Payment of an undetermined amount of legal fees to WildEarth Guardians
In 2010, the Center for Biological Diversity filed a similar complaint in federal
court seeking declaratory and injunctive relief alleging that the Secretary of Interior
failed to comply with a statutory duty to make 12-month findings on petitions made
by the Center for Biological Diversity to list over 500 species as threatened or endangered under the ESA. 18 In a July 2011 settlement between the parties to resolve
the case, FWS committed to a number of activities related to listing petitions under
a set time frame as follows:
The 90 day petitions for 477 aquatics species must be made by September 30,
2011
The 12 month findings for 11 non-aquatic species must be made by September
30, 2011
Seven specific listing petitions must be resolved by September 30, 2012
12 16
U.S.C. 1536.
C.F.R. 402.14(d).
14 Cases Numbers 1:092290, 1:092997, 1:1057, 1:10169, 1:10256, and 1:10263. (D.
Colo.); Numbers 1:100048 and 1:10421 (D. D.C.); and Numbers 1:10s
15 Zapus hudsonius luteus.
16 Centrocercus urophasianus.
17 opherus agassizii.
18 Case Number: 100230.
13 50
14 specific listing petitions must be resolved by September 30, 2013

Two specific listing petitions must be resolved by September 30, 2016
One specific listing petitions must be resolved by September 30, 2017
Payment of an undetermined amount of legal fees to the Center for Biological
Diversity
In contrast to 1400 total species listings under the ESA since its enactment in
1973, the two court settlements will require a review of 750 candidate species in
only six years. The settlements assume that there will be no increase in federal
funding to manage the sharply increased workload of reviewing approximately one
petition per week for the next five years. Even if the agencies can meet the logistical
challenge, there will be a limited amount of time available to review the research
that accompanies each petition.
Shift to Outside Science
In the initial years of the ESA, outside petitions were rare. In recent years, most
listing decisions have been initiated through public petitions submitted by outside
entities such as WildEarth Guardians and the Center for Biological Diversity. Their
submissions contain science conducted by non-government scientists. In cases where
the scientific record is thin, decisions that could have a major financial or societal
impact upon land owners and users are essentially being made upon the research
of a few.
Distinct Population Segments
Under the 1976 amendments to the Endangered Species Act, the FWS is required
to protect distinct population segments of vertebrate species. In practice, this means
that a large subpopulation of a species facing minimal threats to its existence may
not be listed under the Endangered Species Act while a smaller subpopulation elsewhere facing greater threats to its existence may be listed. Although determining
distinct subpopulations is becoming easier due to the increased use of genetic testing, making such decisions are still a subject of vigorous scientific and policy debates. 19 Under guidance issued in 1996, the FWS and NOAA consider three criteria
regarding the listing of a distinct population segment:
1. Discreteness of the population segment in relation to the remainder of the species to which it belongs;
2. The significance of the population segment to the species to which it belongs;
and
3 The population segments conservation status in relation to the Acts standards
for listing (i.e., is the population segment, when treated as if it were a species,
endangered or threatened?). 20
Although increased usage of genetic testing can help answer the first criteria
question, the second and third criteria are a combination of science and policy decision-making. For example, the Florida panther is listed as endangered with less
than 200 animals found in the wild in southern Florida although genetic testing has
shown that the genetic differences between the Florida panther and the other thirty
species of cougars are minimal. 21 In this case, the science concerning genetic differences and population numbers are fairly certain, but the policy decisions are not.
Concerns over Agency Science
The scientific work and opinions made by federal scientists is given significant
deference by federal courts. Federal scientists are considered independent experts
in their specific field working on behalf of the United States and its citizens in contrast to scientists that either directly represent or have a connection to one or more
specific entities. Disputing the decisions and testimony of federal scientists is therefore challenging.
In one recent example, on September 16, 2011 U.S. District Court Judge Oliver
Wanger of California sharply criticized the work and testimony concerning the Delta
Smelt Biological Opinion by two federal scientists, one from the Fish and Wildlife
19 Fallon, Sylvia, Genetic Data and the Listing of Species Under the U.S. Endangered Species
Act Conservation Biology Volume 21 (2007), Pages 11861195.
20 Policy Regarding the Recognition of District Vertebrate Population Notice of Policy. Federal Register 61, (7 February 1996): 47224725.
21 Whoriskey, Peter. Plan to Protect Florida Panther Reopens Issue of Its Identity, Washington Post, 21 February 2006.
7
Service and one from the Bureau of Reclamation. Commenting upon the FWS scientist, Judge Wanger stated I find her testimony to be that of a zealot. In further
comments about the Bureau of Reclamation scientist, he stated
And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the Court can
draw is that it is an attempt to mislead and to deceive the Court into accepting
what is not only not the best science, its not science.
Although Judge Wangers comments were in reference to one specific case, they
do highlight the concerns over the quality of science and the related federal actions
that follow from relying upon that science. If the science used by Congress, federal
agencies, and federal courts to make specific determinations is flawed or biased in
some way, then the policies that result will similarly be flawed and biased.
In another example, a memo dated March 22, 2011 from the Solicitor Generals
office to the Acting Assistant Secretary for Fish and Wildlife and Parks found that
National Park Service employees had failed to satisfy the Interim Code of Scientific
and Scholarly Conduct regarding their actions concerning research on the impact of
shellfish mariculture activities upon protected harbor seal populations. 22 Although
no intent to deceive or scientific misconduct was found by the Solicitors office, this
misconduct arose from incomplete and biased evaluation and from blurring the line
between exploration and advocacy through research. 23
Witnesses
Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service
The Honorable Craig Manson, General Counsel, Westlands Water District
Game
Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable Natural Resources
Mr. Jonathan Adler, Professor, Case Western Reserve University School of Law
Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists
Appendix A
Excerpt of Recent Comments by Federal District Court Judge Wanger from
Court Transcript in the Delta Smelt Cases Concerning the Testimony of
Two Federal Employees and a Finding of Agency Bad Faith by the Bureau
of Reclamation
The Court believes that the testimony of Mr. Feyrer, Bureau of Reclamations expert, and Dr. Norris, the Fish & Wildlife Services expert, areand Im going to be
making findings that are going to be justified by specific factual instances. Their
testimony is riddled with inconsistency. The Court finds that Dr. Norris testimony,
as it has been presented in this courtroom and now in her subsequent declaration,
she may be a very reasonable person and she may be a good scientist, she may be
honest, but she has not been honest with this Court. I find her to be incredible as
a witness. I find her testimony to be that of a zealot. And Im not overstating the
case, Im not being histrionic, Im not being dramatic. Ive never seen anything like
it. And Ive seen a few witnesses testify. Mr. Feyrer is equally inconsistent. Self and
internally contradictory. Iand most of you, some of you have been in these cases
for 20 years. I have never seen anything like what has been placed before this Court
by these two witnesses. And the suggestion by Dr. Norris that the failure to implement X2 at 74 kilometers, that thats going to end the delta smelt existence on the
face of our planet is false, it is outrageous, it is contradicted by her own testimony,
it is contradicted by Mr. Feyrers testimony, its contradicted by the most recent
adaptive management plan review, its contradicted by the prior studies, it iscandidly, Ive never seen anything like it.
Im going to start with Mr. Feyrer, and Im going to go issue by issue, point by
point. Because, candidly, Im going to be making a finding in this case of agency
bad faith. There is simply no justification. There can be no acceptance by a court
of the United States of the conduct that has been engaged in this case by these wit22 The Solicitors memo can be found at http://www.eenews.net/assets/2011/03/23/documentlgwl05.pdf.
23 Ibid. page 35.
8
nesses. And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the Court can
draw is that it is an attempt to mislead and to deceive the Court into accepting
what is not only not the best science, its not science. There is speculation. There
is primarily, mostly contradicted opinions that are presented that the Court not only
finds no basis for, but they cant be anything but false because a witness cant testify under oath on a witness stand and then, within approximately a month, make
statements that are so contradictory that theyre absolutely irreconcilable with what
has been stated earlier.
And the Court draws the inferences of knowledge and draws the inference of intent. Because those are intentional misstatements, they cant be anything else. And
theyre made for only one purpose, theyre made for the purpose of attempting to
influence the Court to decide in a way that is misleading, confusing and the detail
and the factual complexity of this case obviously requires close scrutiny and great
effort. And if anybody had been just, quite frankly, a little bit inattentive or a little
bit less diligent than digging into and trying to get to the bottom of every one of
these assertions, it would be very easy to simply accept these opinions with these
record citations. And when the record says the opposite of what you cite the record
for, or when the record doesnt say what you cite the record for, theres simply an
absence of the data, then that is a further misleading of the Court. That is a further, if you will, distortion of the truth.
9
Chairman BROUN. The Subcommittee on Investigations and
Oversight will come to order.
Good morning. Welcome to todays hearing entitled Endangered
Species Act: Reviewing the Nexus of Science and Policy.
The Endangered Species Act (ESA) is one of the most influential
and far-reaching environmental laws this Nation has ever passed.
Since its passage in 1974, it has been the subject of considerable
debatenot only about its impact on our Nations economy, but
also about its ultimate effectiveness. Everyone wants to save species from extinction, but honest people can have an honest debate
about the most efficient and effective way to do so. In terms of effectiveness, I believe it would be hard to argue that the law has
been anything but an abject failure. Of the roughly 2,000 species
listed as endangered or threatened, only about one percent have actually recovered. As a tool for advancing other special interest policy goals, it has certainly been very influential, and I am sure that
that was not the Acts original intent.
Todays hearing will explore how the science is used to inform
policy decisions under ESA. The written testimonies provided by
our witnesses highlight major flaws in the basic construct and implementation of the Act. Landowners are penalized rather than rewarded for protecting habitat and reporting populations. Dr. Wilkins writes that only with a guarantee of anonymity will most
landowners consent to having their property surveyed for the existence of particular species. As one example, his scientists found 28
more locations where the dunes sagebrush lizard was found, compared to only three previously known locations. This data was only
captured after landowners viewed Texas A&M researchers as something other than a threat to their property rights. Professor Adlers
testimony highlights many other weaknesses in how the Act
threatens science and policy, and Mr. Vincent-Lang will provide a
states perspective on ESA.
Recent events at the Department of Interior have also attracted
this Subcommittees attention. On September 16, 2011, U.S. District Court Judge Oliver Wanger of California sharply criticized the
work and testimony concerning the Delta Smelt Biological Opinion
by two federal scientists, one from the Fish and Wildlife Service
and one from the Bureau of Reclamation. Commenting on the Fish
and Wildlife Service scientist, Judge Wanger stated I found her
testimony to be that of a zealot. In further comments about the
Bureau of Reclamation scientist, he stated, And I am going to
make a very clear and explicit record to support that finding of
agency bad faith because, candidly, the only inference that the
Court can draw is that this is an attempt to mislead and to deceive
the Court into accepting what is not only not the best science, it
is not science.
I am also concerned about the flood of ESA petitions and the related litigation that could potentially challenge the quality of the
Services work. I find it revealing that some of the same entities
that have brought lawsuits over hundreds of species brag in their
annual reports about the money that they make from filing environmental lawsuits against federal agencies. In its 2010 annual report, WildEarth Guardians states that ten percent of their income
came from their litigation settlements and that they depend upon
10
this income to survive and thrive. I note that this so-called income is at taxpayers expense. Maybe supporting environmental
trial lawyers is part of the Presidents job plan, but I doubt that
the American people would agree that these are green jobs.
Two recent court settlements require over 600 species to be
jammed through the Fish and Wildlife Service listing process regardless of other agency priorities. I have serious concerns about
whether these listings will be made based upon science, as they
should be, or on legal expedience.
In a time of record unemployment, the Administration continues
to choose regulations over jobs. While I agree an appropriate balance can be met, constituents in my district need jobs, not red tape.
We dont live in a vacuum and neither should our environmental
laws. Many of the witnesses before us today have identified serious
weaknesses with ESA, as well as practical solutions that can bring
about real conservation. It is a timeit is past time actually for an
overhaul of the Endangered Species Act.
You will find in front of you packets containing our witness panels written testimony, biographies, and truth-in-testimony disclosures.
I recognize myself now for an opening statement. Excuse me. I
recognize Ranking Member from Maryland, my friend, Ms. Edwards, for her opening statement. I just did mine. Ms. Edwards,
you are recognized for five minutes.
[The prepared statement of Dr. Broun follows:]
PREPARED STATEMENT
OF
CHAIRMAN PAUL BROUN
The Endangered Species Act (ESA) is one of the most influential and far-reaching
environmental laws this nation has ever passed. Since its passage in 1974, it has
been the subject of considerable debatenot only about its impact on our nations
economy, but also about its ultimate effectiveness. Everyone wants to save species
from extinction, but honest people can have an honest debate about the most efficient and effective way to do so. In terms of effectiveness, I believe it would be hard
to argue that the law has been anything but an abject failure. Of the roughly 2,000
species listed as endangered or threatened, only about one percent have actually recovered. As a tool for advancing other special interest policy goals, it has certainly
been very influential, but Im not sure that was the Acts original intent.
Todays hearing will explore how the science is used to inform policy decisions
under ESA. The written testimonies provided by our witnesses highlight major
flaws in the basic construct and implementation of the Act. Landowners are penalized rather than rewarded for protecting habitat and reporting populations. Dr. Wilkins writes that only with a guarantee of anonymity will most landowners consent
to having their property surveyed for the existence of particular species. As one example, his scientists found 28 more locations where the dunes sagebrush lizard was
found, compared to only three previously known locations. This data was only captured after landowners viewed Texas A&M researchers as something other than a
threat to their property rights. Professor Adlers testimony highlights many other
weaknesses in how the act treats science and policy, and Mr. Vincent-Lang will provide a states perspective on ESA.
Recent events at the Department of Interior have also attracted this Subcommittees attention. On September 16, 2011 U.S. District Court Judge Oliver Wanger of
California sharply criticized the work and testimony concerning the Delta Smelt Biological Opinion by two federal scientists, one from the Fish and Wildlife Service
and one from the Bureau of Reclamation. Commenting upon the FWS scientist,
Judge Wanger stated I find her testimony to be that of a zealot. In further comments about the Bureau of Reclamation scientist, he stated
And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the Court
can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, its not science.
11
I am also concerned about the flood of ESA petitions and the related litigation
that could potentially challenge the quality of the Services work. I find it revealing
that some of the same entities that have brought lawsuits over hundreds of species
brag in their annual reports about the money they make from filing environmental
lawsuits against federal agencies. In its 2010 annual report, WildEarth Guardians
states that ten percent of their income came from their litigation settlements and
that they depend upon this income to survive and thrive. I note that this so-called
income is at taxpayer expense. Maybe supporting environmental trial lawyers is
part of the Presidents job plan, but I doubt the American people would agree that
these are green jobs.
Two recent court settlements require over 600 species to be jammed through the
Fish and Wildlife Service listing process regardless of other agency priorities. I have
serious concerns about whether these listings will be made based upon science, as
they should be, or on legal expedience.
In a time of record unemployment, the Administration continues to choose regulations over jobs. While I agree an appropriate balance can be met, constituents in
my district need jobs, not red tape. We dont live in a vacuum and neither should
our environmental laws. Many of the witnesses before us today have identified serious weaknesses with ESA, as well as practical solutions that can bring about real
conservation. It is time for an overhaul of the Endangered Species Act.
Ms. EDWARDS. Thank you, Mr. Chairman, and thank you for
holding the hearing and our witnesses for being here today. And
pardon my laryngitis. It will hurt you more to listen to it than it
does me to talk.
At the heart of this hearing is really about scientific integrity
and whether we plan to face the problems with science in the management of the Endangered Species Act. I want to begin by quoting
one of our countrys most famous conservationists, President Richard Nixon. And he said, 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. And I do share
that sentiment. I just want to remind everyone that President
Nixon said those words on the occasion of signing into law the Endangered Species Act of 1973.
Part of the reason I share that quote is because protecting wildlife and protecting nature from destruction used to be a bipartisan
cause, but unfortunately, my Republican colleagues no longer see
eye to eye with their partys former President. And let us make no
mistake about itthe Endangered Species Act, when it is allowed
to work, protects wildlife from utter destruction.
But since 1973, protection of wildlife has increasingly become
with the liberal cause. And what is most disturbing about this is
that since 1973, we have learned so much about the benefits of biodiversity and the value of healthy ecosystems and the value that
that provides to people. And as I look in this room, we do see the
portrait of my friend, former Chairman here, Sherry Boehlert, who
is a Republican, who was a proud environmentalist. I was a colleague of his on the Board of the League of Conservation Voters,
and it really saddens me that he may have been one of the last of
his kind in the Republican Party.
The focus of todays hearing seems to be on attacking the integrity of agency scientists with little help from former U.S. District
Court Judge Oliver Wangers inflammatory opinion in the Delta
Smelt case from last month. In the wake of that widely reported
decision, the Judge appears to have backtracked on his over-the-top
comments, and I think that his extreme language was misguided
12
and efforts to attack the credibility of agency scientists also misguided. The evidence of the past decade show that the real scientific integrity at issue at our federal agencies generally and the
Fish and Wildlife Service specifically has been political meddling
with the agency science. I hope our group of witnesses can speak
to that problem.
And I want to thank you, Chairman Broun, for calling such a superb panel for that purpose. Present on todays panel you also have
a former Bush Administration Assistant Secretary Craig Manson,
who was mentioned 155 times in a 2008 investigative report by the
Department of Interior Inspector General. The then-Interior Inspector General Earl Devaney was looking into allegations of misconduct by Mr. Mansons Deputy, Julie McDonald. To quote just a
small portion of the Inspector Generals memorandum, he noted,
McDonalds zeal to advance her agenda has caused considerable
harm to the integrity of the ESA program and to the morale and
reputation of Fish and Wildlife, as well as potential harm to individual species. Her heavy-handedness has cast doubt on nearly
every ESA decision issued during her tenure. Of the 20 decisions
we reviewed, her influence potentially jeopardized 13 ESA decisions. McDonalds conduct was backed by the seemingly blind support of former Assistant Secretary for Fish and Wildlife and Parks,
Judge Craig Manson. Judge Manson so thoroughly supported
McDonald that even when a known error in a federal register noticewhich was caused by McDonalds calculationswas brought
to Mansons attention, he directed that notice to be published regardless of the error.
If I am not mistaken, Mr. Chairman, I believe that the Fish and
Wildlife witness we have today here, Craig Frazer, was the very
person who brought the aforementioned error to the federal register notice to Mr. Mansons attention. And how was he rewarded
for trying to correct the error? Mr. Manson transferred him out of
the Agency. Thankfully, one of Mr. Mansons successors had the
good sense to rectify this abuse conduct with respect to Mr. Frazer,
a dedicated public servant who just wanted to get the correct information published and not simply spit out whatever was politically
expedient. He is back at the Department and I am happy to see
him here today before us in an official capacity, and I look forward
to his very candid testimony today.
And with that, Mr. Chairman, I would yield.
[The prepared statement of Ms. Edwards follows:]
PREPARED STATEMENT
OF
RANKING MEMBER DONNA EDWARDS
I would like to thank Chairman Broun for holding this hearing, and also thank
our witnesses for being here today. At its heart, this hearing is about scientific integrity and whether we face problems with science in the management of the Endangered Species Act.
Id like to start off by quoting one of our countrys most famous conservationists,
President Richard Nixon:
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 share that sentiment.
President Nixon said those words on the occasion of signing into law the Endangered Species Act in 1973.
13
I share that quote because protecting wildlife and protecting nature from utter
destruction used to be a bipartisan cause. Unfortunately, my Republican colleagues
no longer see eye to eye with their Partys former president. Lets make no mistake
about it, the Endangered Species Act, when it is allowed to work, protects wildlife
from utter destruction.
However, since 1973, protection of wildlife has increasingly become associated
with the liberal cause. Whats most disturbing about this is that since 1973 weve
learned so much about the benefits of biodiversity and the value healthy ecosystems
provide to people.
As I look up, I see the portrait of Chairman Sherry Boehlert, a Republican, and
a proud environmentalist. It truly saddens me that he may have been the last of
his kind . . .
The focus of todays hearing seems to be on attacking the integrity of agency scientists, with a little help from former U.S. District Court Judge Oliver Wangers
(pronounced: Wayne-jer) inflammatory opinion in the Delta Smelt case from last
month. In the wake of that widely reported decision, Judge Wanger appears to have
backtracked on his over-the-top comments.
I think Judge Wangers extreme language was misguided, and efforts to attack
the credibility of agency scientists are also misguided. The evidence of the past decade has shown that the real scientific integrity issue at our Federal agencies generally, and the Fish and Wildlife Service specifically, has been political meddling
with agency science. I hope our group of witnesses can speak to that.
I have to thank you, Chairman Broun, for calling such a superb panel for just
that purpose. Present on todays panel you have a former Bush Administration Assistant Secretary, Craig Manson, who was mentioned 155 times in a 2008 Investigative Report by the Department of Interior Inspector General. The then-Interior IG,
Earl Devaney, was looking into allegations of misconduct by Mr. Mansons Deputy,
Julie MacDonald. To quote just a small portion of the Inspector Generals Memorandum, he noted that:
MacDonalds zeal to advance her agenda has caused considerable harm to the
integrity of the ESA program and to the morale and reputation of the FW, as
well as potential harm to individual species. Her heavy-handedness has cast
doubt on nearly every ESA decision issued during her tenure; of the 20 decisions
we reviewed, her influence potentially jeopardized 13 ESA decisions. MacDonalds conduct was backed by the seemingly blind support of former Assistant
Secretary for Fish and Wildlife and Parks, Judge Craig Manson. Judge Manson
so thoroughly supported MacDonald that even when a known error in a Federal
Register notice, which was caused by MacDonalds calculations, was brought to
Mansons attention, he directed that the notice be published regardless of the
error.
If Im not mistaken Mr. Chairman, I believe that the Fish and Wildlife witness
we have here today, Gary Frazer, was the very person who brought the aforementioned error in the Federal Register notice to Mr. Mansons attention. And how was
he rewarded for trying to correct this error? Mr. Manson transferred him out of the
agency. Thankfully, one of Mr. Mansons successors had the good sense to rectify
this abusive conduct with regard to Mr. Frazer, a dedicated public servant who just
wanted to get the correct information published, and not simply spit out whatever
was politically expedient. He is back at the Department and I am happy to see him
here before us today in an official capacity.
The DOI Inspector General found that during Julie MacDonalds tenure she had
bullied, insulted, and harassed the professional staff of FWS to change documents
and alter biological reporting, disclosed nonpublic information to private sector
sources including to lobbyists, and participated in the editing process for a species
for which she had a potential personal financial conflict of interest. All of this was
done with Mr. Mansons unwavering support.
The Chairman has repeatedly asked about the status of the Obama Administrations science integrity policy. I am sure you join me in finding satisfaction from the
fact that the Department of Interior has put a final policy in place. But the reason
such a policy was even needed was because of conduct during the prior Administration by political appointees such as Mr. Manson.
If Mr. Mansons tenure at Interior was all that we had to look forward to covering
in todays hearing, this would be a great opportunity. However, we also have a witness from the State of Alaska who can explain to the Subcommittee his States
unique new policy which says that once the state takes a position, such as on an
endangered species issue, state scientists must advocate that positionregardless of
the factsor face punishment. That sort of gag rule is precisely the kind of thing
that I am sure the Chairman wants to make sure the Obama Administration does
14
not condone in its own agencies and this is something we can certainly both agree
on.
So I look forward to a spirited discussion today, and expect that by the end of
this hearing we will all have some newfound respect for the difficult environment
our Federal agency scientists work inand perhaps some state scientists tooto try
and do the right thing, day in and day out, while getting attacked from the outside,
and sometimes from within.
I yield back Mr. Chairman.
Chairman BROUN. Thank you, Ms. Edwards.

If there are Members who wish to submit additional opening
statements, your statements will be added to the record at this
point.
At this time I would like to introduce our panel of witnesses:
Gary Frazer, Assistant Director, Endangered Species, U.S. Fish
and Wildlife Service; Professor Jonathan Adler of Case Western Reserve University School of Law, the Honorable Craig Manson, General Counsel, Westlands Water District; Douglas Vincent-Lang,
Special Assistant, Alaska Department of Game and Fish; Dr. Neal
Wilkins, Director of Texas A&M Institute of Renewable Natural
Resources; and Dr. Francesca T.is it Grifo? Grifo, okay, Union of
Concerned Scientists.
As our witnesses should know, spoken testimony is limited to
five minutes each, after which the Members of the Committee will
have five minutes each to ask questions. Your written testimony
will be included in the record of the hearing. It is the practice of
the Subcommittee on Investigations and Oversight to receive testimony under oath. Do any of you have an objection of taking an
oath?
Everybody sits there staring at me. I like to see their heads either move from side to side or something. So everybodyno one
has an objection to taking an oath, is that correct? Okay.
Let the reflectrecord reflect that all witnesses are willing to
take an oath as reflected by their shaking their head from side to
side.
You also may be represented by counsel. Do any of you have
counsel with you here today? Again, okay, Judge Manson, you
haveokay, very good. Thank you.
Let the record reflect that none of the witnesses have counsel.
If all of you would please now stand and raise your right hand.
Judge Manson, you dont have to do that. Please raise your right
hand.
Do you solemnly swear to affirm to tell the whole truth, nothing
but the truth, so help you God?
Let the record reflect that all the witnesses participating have
taken the oath.
I now recognize our first witness, Mr. Frazer. You have five minutes.
STATEMENT OF MR. GARY FRAZER,
ASSISTANT DIRECTOR, ENDANGERED SPECIES,
U.S. FISH AND WILDLIFE SERVICE,
DEPARTMENT OF THE INTERIOR
Dr. FRAZER. Good morning, Chairman Broun, Ranking Member

Edwards, and Members of the Subcommittee. I am Gary Frazer,
Assistant Director for the Endangered Species Program within the
15
U.S. Fish and Wildlife Service. I appreciate this opportunity to discuss how the Service carries out its duties related to listing,
delisting, consultation, and recovery of species under the Endangered Species Act.
This job has never been easy, and it grows more difficult every
day. We are facing an extinction crisis. The nature of this work
often results in strongly held views on all sides and frequent challenges to our decisions. In the face of all that, we believe that the
Service does an excellent job of making decisions that are scientifically sound, legally correct, transparent, and capable of withstanding challenge.
The ESA provides a critical safety net for Americas native fish,
wildlife, and plants. And we know it can deliver remarkable successes. Since Congress passed this landmark conservation law in
1973, the ESA has prevented the extinction of hundreds of imperiled species across the Nation and promoted the recovery of many
others.
Our Nations rich diversity of fish, wildlife, and plants symbolizes
Americas wealth and promise. The ESA represents a firm commitment to protect and preserve our natural heritage out of a deeply
held understanding of the direct link between the health of our ecosystems, the services they provide, and our own well-being.
The ESA directs that determinations on whether to list any species as endangered or threatened must be made solely on the basis
of the best scientific and commercial data available. The term best
scientific and commercial data available means those data that
are available at the time the Service makes a listing determination,
and the Act also establishes a schedule under which the Service
must make those determinations. We do not have the luxury of
waiting for all the information we might want. Rather, we have to
make timely decisions based on the information that is available.
A full description of the procedures used for identifying candidate
species, responding to petitions to lists, and making listing and
delisting decisions is provided in my written statement.
The workload associated with carrying out our listing activities
has for many years exceeded the resources available to the Service.
Therefore, a substantial backlog of listing actions has accumulated.
The Service recently developed a six-year work plan for the Listing Program through mediated settlement agreements with two of
the Services most frequent plaintiffs. The Service will systematically review and address the needs of more than 250 species that
are currently candidates for protection under the ESA to determine
if they should be listed as threatened or endangered species. The
Service will make listing determinations for each species, carefully
reviewing scientific information and public comments before deciding whether listing is still warranted and, if so, whether to designate the species as threatened or endangered. Each and every
listing proposal will be subject to independent peer review and public comment.
Service decisions under the Endangered Species Act are sometimes controversial, and there have been cases in the recent past
where the scientific underpinning of the Services decisions has
been subject to high-level independent scientific review. My written
16
statement describes several such reviews, but I will note one in
particular.
In 2008, the Service issued a jeopardy biological opinion to the
Bureau of Reclamation regarding the Continued Long-Term Operation of the Central Valley Project and State Water Project and included a reasonable and prudent alternative to protect delta smelt
and their habitat. The scientific information that the Service used
in the 2008 Central Valley Project opinion has now been reviewed
by five separate independent peer review processes, including a
2010 review by a National Research Council panel. While these reviews identified elements of the opinion that might have been handled differently or justified more thoroughly, they all largely affirmed that the Service used the best available scientific information and applied that information in a conceptually sound and scientifically justified manner.
The science underlying the Services Central Valley Project opinion is also the subject of ongoing litigation. With regard to recent
comments made by former U.S. District Judge Oliver Wanger, we
fully believe thatwe firmly believe that wise decisions about the
future of the Bay Delta must be guided by our best available
science. The Department stands behind the consistent and thorough work that our scientists from the Service and the Bureau of
Reclamation have done on the Bay Delta over many years.
We also believe that when questions arise regarding the integrity
of scientific work, it is important to resolve them swiftly, independently, and decisively. We disagree with Judge Wangers comments
last month, and we recognize and appreciate his effort to clarify
those comments before his retirement. Still, we believe it is important that we follow the Departments standard procedures for reviewing questions of scientific integrity, so that we can resolve
them definitively and provide the due process that our affected scientists deserve.
Therefore, the Department has instructed the Scientific Integrity
Officers of the Service and the Bureau of Reclamation to retain
independent experts to evaluate the allegations made by Judge
Wanger.
In closing, Mr. Chairman, I would like to emphasize the importance the Service places upon having a science-driven, transparent
decision-making process in which the affected public can participate effectively. Thank you for your interest in endangered species
conservation and ESA implementation and for the opportunity to
testify. I would be happy to answer any questions that you and
other Members of the Subcommittee might have. Thank you.
[The prepared statement of Mr. Frazer follows:]
PREPARED STATEMENT OF MR. GARY FRAZER, ASSISTANT DIRECTOR,
ENDANGERED SPECIES, U.S. FISH AND WILDLIFE SERVICE
Good morning Chairman Broun, Ranking Member Edwards, and Members of the
Subcommittee. I am Gary Frazer, Assistant Director for the Endangered Species
program within the U.S. Fish and Wildlife Service (Service).
Mr. Chairman, I appreciate this opportunity to discuss how the Service carries out
its duties related to listing, delisting, consultation on, and recovery of species under
the Endangered Species Act (ESA). Our procedures, some prescribed by statute and
others by agency regulations or policies, are all focused upon ensuring that our decisions are objective, based on the best available science, and made in the open with
peer review and public participation throughout.
17
The Service is committed to making the ESA work in the eyes of the public, the
Congress, and the courts so as to accomplish its purpose of conserving threatened
and endangered species and protecting the ecosystems upon which they depend.
This job has never been easy, and it grows more difficult every day. We are facing
an extinction crisis. With the pace and extent of environmental change threatening
the continued existence of more and more of our Nations biological wealth, we must
manage limited resources to carry out our mission. The nature of this work often
results in strongly held views on all sides and frequent challenges to our decisions
through the administrative, judicial, and political process. In the face of all that, we
believe that, overall, the Service does an excellent job of making decisions that are
scientifically sound, legally correct, transparent, and capable of withstanding challenge.
In this context, the following principles provide the foundation for the administration of our listing and delisting activities: decisions based on the best available
science; independent peer review of decisions; public participation throughout the
decision-making process; and understandable and transparent decisions.
Success in the Endangered Species Act
The ESA provides a critical safety net for Americas native fish, wildlife, and
plants. And we know it can deliver remarkable successes. Since Congress passed
this landmark conservation law in 1973, the ESA has prevented the extinction of
hundreds of imperiled species across the nation and has promoted the recovery of
many otherslike the bald eagle, the very symbol of our Nations strength. Wellknown examples include the recovery of the American alligator and brown pelican.
Likewise, in August of this year, the Service delisted the Tennessee purple
coneflower, the culmination of another Service-facilitated alliance of multiple diverse
partners coming together to achieve the unified goal of recovery for an endangered
plant species.
Success under the ESA is not only defined by removal of species from the list of
endangered and threatened species. The fact that relatively few observed extinctions
have occurred in the United States during the last four decades represents a significant benchmark of success of the ESA. The ESA has been successful in stabilizing
endangered and threatened species by promoting conservation programs that are designed for their recovery. For instance, the Service and Eglin Air Force Base have
worked together to address threats to a small native streamfish on the base, the
Okaloosa darter, and this year the Service was able to downlist the fish from endangered to threatened. Partnerships with the States, Tribes, and the agricultural community are supporting the spectacular ongoing recovery of the black-footed ferret,
once believed to be extinct but re-discovered 30 years ago and now reestablished in
10 experimental populations. A less familiar but equally impressive example is that
of the Kemps ridley sea turtle, increasing from fewer than 300 females nesting in
1985 to more than 6,000 females nesting in recent years.
Our Nations rich diversity of fish, wildlife, and plant resources symbolizes Americas wealth and promise. The ESA represents a firm commitment to protect and
preserve our natural heritage out of a deeply held understanding of the direct link
between the health of our ecosystems, the services they provide and our own wellbeing.
Science, Peer Review, Public Participation and the 2011 Scientific Integrity
Policy
Section 4(b)(1)(A) of the ESA directs that determinations as to whether any species is an endangered or threatened species must be made solely on the basis of
the best scientific and commercial data available. The term best scientific and
commercial data available means those data that are available at the time the
Service makes a listing determination, and the provisions of section 4 of the ESA
establish the schedule under which the Service must make determinations. The
careful evaluation of scientific evidence is fundamental to the assessment of species
for listing or delisting under the ESA. We do not have the luxury of waiting for all
the information we might want; rather, we have to make timely decisions based on
the information that is available, and our scientists and managers have done an exceptional job under those circumstances. Maintaining and increasing the capacities
of our employees to access and analyze scientific information is, and will be, a key
to our success.
Our joint Fish and Wildlife Service/National Marine Fisheries Service (NMFS)
Policy on Information Standards Under the Endangered Species Act, published in
the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes
18
procedures, and provides guidance to our field biologists and managers regarding
the use of scientific information in our decision-making process.
This Policy on Information Standards requires our biologists and managers to
ensure that the information we use is reliable and credible, and represents the best
data available; to impartially evaluate information that conflicts with existing positions or decisions of the Service; to document their evaluation of the available scientific and commercial data; to use primary and original sources of information as
the basis for recommendations, where consistent with the ESA and our obligation
to use the best information available; and to conduct management-level reviews of
the documents developed by staff biologists to verify and assure the quality of the
science used in the decision-making process.
To further ensure that sound science underlies our decisions, the Service and
NMFS established a joint Policy for Peer Review in Endangered Species Act Activities, published in the Federal Register on July 1, 1994 (59 FR 34270). This policy
works to ensure that independent peer review is incorporated throughout our listing
and recovery programs in a manner that complements, but does not circumvent or
supersede, other established public participation processes.
In recognition of the unique capability of State fish and wildlife agencies to assist
in implementing all aspects of the ESA, the Service and NMFS developed a joint
Policy Regarding the Role of State Agencies in Endangered Species Act Activities,
also published in the Federal Register on July 1, 1994 (59 FR 34275). This policy
recognizes that States possess broad trustee authorities over fish, wildlife, and
plants and their habitats within their borders, as well as scientific data and valuable expertise on the status and distribution of such species and habitats. The policy
requires the Services to solicit State agency expertise and participation in a broad
range of activities, including determining which species should be included on the
list of candidate species; conducting population status inventories and geographical
distribution surveys; responding to listing petitions, preparing proposed and final
listing and delisting rules; and designing and implementing recovery efforts.
The Executive Order 13175 of November 6, 2000, on government-to-government
relations with Native American tribal governments also requires us to consult with
Tribes on matters that affect them. Consistent with this and our Federal trust responsibilities, we consult to the extent possible with Indian Tribes having tribal
trust resources, tribally owned fee lands, or tribal rights that might be affected by
ESA activities. State and Tribal capacity supported through programs like the State
and Tribal wildlife grants, is a key ingredient in longterm effectiveness.
In addition to our own policies, the Service follows the Administrative Procedure
Act (APA) (5 U.S.C. 551 et seq.) rulemaking process for listing actions. All the information we rely upon in making our listing decisions is available for public review
and comment. Under section 553 of the APA, Federal agencies must publish proposed rules in the Federal Register; give interested parties an opportunity to participate in the rulemaking by allowing them to submit written data, views, or arguments, with or without opportunity for oral presentation; after considering all comments received, publish final rules in the Federal Register and include a concise
general statement of their purpose; and allow at least 30 days following publication
of a final rule before it becomes effective, except in certain cases.
In December 2000, Congress required Federal agencies to publish their own
guidelines for ensuring and maximizing the quality, objectivity, utility, and integrity
of information that they disseminate to the public (44 U.S.C. 3502). The statutory
language containing this requirement is included in the Information Quality Act
(IQA) (section 515 of the Treasury and General Government Appropriations Act for
Fiscal Year 2001 (Pub. L. 106554; HR 5658)). The Office of Management and Budget (OMB) published guidelines pursuant to the IQA in the Federal Register on February 22, 2002 (67 FR 8452), directing agencies to address the requirements of the
law. In a May 24, 2002, Federal Register notice (67 FR 36642), the Department of
the Interior issued Department-wide guidelines and instructed bureaus to prepare
specific guidelines for implementing the IQA within the context of their individual
missions. The Service issued its initial Information Quality Guidelines in October,
2002 and updated guidelines were put into effect in August 2007. The Services Information Quality Guidelines provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific data available.
The Information Quality Guidelines establish Service policy and procedures for reviewing, substantiating, and correcting the quality of information it disseminates to
the public.
In February 2011, Interior Secretary Ken Salazar announced the establishment
of a new policy to ensure and maintain the integrity of scientific and scholarly activities used in Departmental decision-making. This policy is based on the principles
found in Secretarial Order 3305, which called for the development of the policy and
19
was guided by the Office of Science and Technology Policy memo issued in December
2010, and was in response to the politicization of science during the last Administration. As part of the implementation of the new policy, Secretary Salazar appointed
Dr. Ralph Morgenweck, the U.S. Fish and Wildlife Services Senior Science Advisor,
to serve as the Departments first Scientific Integrity Officer.
The ESA, the APA, and the policies and regulations governing our listing and
delisting activities ensure that States, Tribes, other agencies, and the public have
ample opportunity to participate in our listing and delisting actions. These established processes ensure that the public can participate fully in listing and delisting
decisions. In addition, the requirement that the Service maintain and make available the administrative record in support of its decisions brings to bear an open and
transparent decision-making process.
The Listing Process
Listing under the ESA becomes necessary when a species declines, or threats to
it increase, to the point where it is in danger of extinction throughout all or a significant portion of its range (an endangered species ) or it is likely to become endangered in the foreseeable future (a threatened species ). The Secretary is required to list or reclassify a species if, after reviewing the species status using the
best scientific and commercial data available, it is found that the species is endangered or threatened because of any one or a combination of the following factors:
the present or threatened destruction, modification, or curtailment of its habitat
or range;
overutilization for commercial, recreational, scientific, or educational purposes;
disease or predation;
the inadequacy of existing regulatory mechanisms; and
other natural or manmade factors affecting its continued existence.
There are two processes the Service follows to identify species in need of listing.
The first is the candidate assessment process, which is initiated by the Service. The
second is a petition process, which is available to the public.
Part of the Services Candidate Conservation program is the candidate assessment
process, through which the Service identifies species of fish, wildlife, and plants that
may be at risk and in need of protection under the ESA. To identify candidate species, we use our own biological surveys, including status surveys conducted for the
purpose of candidate assessment. We also use information from State Natural Heritage Programs, other Federal and State agencies, knowledgeable scientists, and public and private natural resources organizations.
Each year, the Service publishes in the Federal Register the Candidate Notice of
Review (CNOR). The CNOR identifies the species that we believe are candidates for
listing under the ESA. The CNOR lists those species previously identified as candidates, species for which petitions have resulted in warranted but precluded findings, as discussed below, during the prior year, and other species that appear to
warrant listing under the ESA. When we identify a species as a candidate for listing, we have sufficient scientific information available to support a proposed rule
to list the species as a threatened or endangered species. However, preparation of
the proposed rule is precluded by higher-priority listing actions.
We publish the CNOR, make individual candidate assessment forms available to
the public, and solicit additional information about the status of candidate species,
the threats they face, and conservation actions that are being implemented that
may benefit the species. We accept information from the public about candidate species at any time. We use the publics comments in the preparation of listing rules
for the highest priority candidates, in determining the listing priority of candidate
species, and in determining whether species continue to warrant candidate status.
In addition, publication of the list of candidate species provides important information about potential listings that can be used by planners and developers.
The CNOR also serves to explain to the public our long-standing science-based
priority system for adding species to the list, which was published in the Federal
Register on September 1, 1983 (48 FR 4309843105). Each candidate species is assigned a listing priority number (LPN), based on the immediacy and magnitude of
the threats faced by the species and on its taxonomic distinctiveness. The candidate
assessment forms, which are available to the public upon request, document our
reasons for assigning a particular LPN to each candidate species. We use the LPN
to prioritize listing actions. Species with lower LPNs are given a higher priority for
action.
20
The second process for identifying species that may warrant listing is the petition
process. Section 4 of the ESA allows any interested person to petition the Secretary
of the Interior either to add a species to, or remove a species from, the lists of
threatened and endangered species.
Upon receipt of a petition, the Service must respond, within 90 days when practicable, with a finding as to whether the petition provides substantial scientific or
commercial information indicating that the petitioned action may be warranted. If
the Service determines that the petition did not provide such substantial information, the 90-day finding concludes the petition review process. However, if the Service determines that the petition does provide substantial information, the Service
initiates a status review and issues an additional finding within 12 months of the
receipt of the petition.
There are three possible outcomes of the 12-month finding: 1) listing is not warranted, and no further action is taken; 2) listing is warranted, and a listing proposal
is promptly prepared; or 3) listing is warranted, but immediate action is precluded
by higher priority actions. A warranted but precluded finding is made on the basis
of the species listing priority number and the listing workload. In such cases, preparation of a listing proposal is delayed until higher priority actions are completed,
and the species is added to the list of candidate species and included in the next
CNOR.
Our listing and delisting actions are rule-makings, published in proposed and
final rule form in the Federal Register, and leading to revisions to Title 50, Part
17 of the Code of Federal Regulations. Once a proposal is published, the Service
must allow for a public comment period on the proposal; provide actual notice of the
proposed regulation to appropriate State, tribal, and local government agencies;
publish a summary of the proposal in a newspaper of general circulation in areas
where the species occurs; and hold a public hearing, if requested (see 16 U.S.C.
1533(b)(5)). The Services implementing regulations require that the public comment
period on a listing proposal be at least 60 days long (see 50 C.F.R. 424.16(c)(2)).
Since public participation is so important to effective conservation efforts, the Service will often hold multiple public hearings and extend the comment period beyond
the minimum required by the law and regulation.
We always solicit independent peer review of our listing proposals, and incorporate comments and recommendations that we receive. We have found such peer
review to be a valuable element of the decision-making process.
The Service reviews petitions, adds species to the list, reclassifies species from
threatened to endangered, and designates critical habitat using funds appropriated
specifically to our Listing Program for these purposes. (Delisting and reclassification
from endangered to threatened are part of the recovery process and are funded
through the Recovery program.) The workload associated with these listing activities has for many years exceeded the resources available to the Service for listing
actions. Therefore, a substantial backlog of listing actions has accumulated.
Multi-District Litigation Settlements for the Listing Program
The Service recently developed a six year work plan for the Listing Program
through mediated settlement agreements with two of the Services most frequent
plaintiffs, and we now expect to be able to address the backlog of species awaiting
final determinations for protection under the Act. For the first time in years, the
wildlife professionals at the Service will have the opportunity to use our objective
listing priority system to extend the safety net to those species most in need of protection, rather than having our work priorities driven by the courts.
The Service will systematically, over a period of six years, review and address the
needs of more than 250 species now on the list of candidates for protection under
the ESA, to determine if they should be added to the Federal Lists of Endangered
and Threatened Wildlife and Plants. All of these species were previously determined
by the Service to warrant being proposed for listing, but action was deferred because
of the need to allocate resources for other work. The Service will make listing determinations for each species, carefully reviewing scientific information and public
comments before deciding whether listing is still warranted and, if so, whether to
designate the species as threatened or endangered. Each and every listing proposal
will be subject to public review and comment.
The listing work plan will also provide predictability and certainty to landowners
and State and local governments, providing time for States and landowners to engage in conservation programs and for agencies to develop management plans. The
Service has developed a variety of tools and programs to encourage conservation efforts for listed and candidate species that are compatible with the objectives and
needs of landowners with listed and candidate species on their lands. These tools
21
include Habitat Conservation Plans, Safe Harbor Agreements, and Candidate Conservation Agreements that provide regulatory assurance; technical assistance; and
a grants program that funds conservation projects by private landowners, states,
and territories.
Science Information Standards for Consultation and Recovery
The best available scientific information is also the foundation of our consultation
and recovery activities under the Act.
One of the most important and effective tools available to recover endangered and
threatened species is the consultation process prescribed by section 7 of the ESA.
We engage in consultation with other federal agencies to assist them in meeting
their obligation to avoid taking any action that would be likely to jeopardize the continued existence of a listed species or that would destroy or adversely modify designated critical habitat for a listed species. Similar to section 4, section 7 requires
that the best scientific data available be employed in conducting consultations. This
requirement was reinforced, made more specific, and extended to cover preparation
and implementation of recovery plans in the joint policy issued on July 1, 1994 (59
FR 34271). The requirement is extremely important in these contexts because consultations and recovery plans often determine how action agencies will contribute
to recovery and avoid unacceptable risk to listed species.
The conduct of consultation under section 7 of the ESA is prescribed in regulations (50 CFR part 402) and further guided by a Consultation Handbook developed
in partnership with the National Marine Fisheries Service. The Service is a fieldbased organization, and most local consultations are conducted by field offices with
geographic responsibility for the area in which an action is to occur. However, the
field offices operate under the oversight of our regional offices, and the authority
to issue draft or final biological opinions that find that an action is likely to jeopardize the continued existence of a listed species or destroy or adversely modify its
designated critical habitat is delegated no lower than the Regional Directors, our
senior career managers in the field. In addition, our established procedures require
that the Director be notified in advance of issuance of a jeopardy or adverse modification opinion.
Recovery of threatened and endangered species is the process by which their decline is reversed, and the threats to their survival are removed, so that their longterm survival in the wild can be ensured. The goal of the recovery process is to restore listed species to a point where they are secure, self-sustaining components of
their ecosystems, no longer require the protections of the ESA, and can be delisted.
For almost all species, a recovery plan is essential as a road map for the recovery
process. A first step in the process is to identify the participants of a recovery team
that will work to craft the recovery plan for a listed species. To guide our actions
during the recovery process, the Service uses our May 1990 Policy and Guidelines
for Planning and Coordinating Recovery of Endangered and Threatened Species
and the following 1994 joint FWS/NMFS policies:
Policy for Peer Review of ESA Activities incorporates independent peer review
into recovery actions, including the writing of recovery plans;
Policy on Information Standards directs that the best available scientific and
commercial information be used when determining what actions are needed to
recover species; and
Policy on Recovery Plan Participation and Implementation (published in the
Federal Register on July 1, 1994 (59 FR 34272) directs the Service to solicit
the participation of State, Tribal, and Federal agencies, academic institutions,
private individuals, and economic interests when determining the recovery actions needed to recover species.
The last policy directs the Service to diversify the areas of expertise represented
on a recovery team, develop multiple species plans when possible, minimize the social and economic impacts of implementing recovery actions, and involve representatives of affected groups and provide stakeholders the opportunity to participate in
recovery plan development.
Because the Service bases our recovery decisions on the best available scientific
information, we seek to involve experts in these decisions and include them on recovery teams. Therefore, when we initiate the recovery planning process for a listed
species, we endeavor to identify experts on the species and its habitat, as well as
the most knowledgeable individuals on land use and land management within the
range of the species.
Once a draft recovery plan is prepared, a notice of availability is published and
comments are solicited from the public. Today, it is not unusual for the Service to
22
receive hundreds, sometimes thousands, of comments on a single plan. These comments come from a wide range of interests: from advocates for the environment to
private citizens who are worried about what effects the recovery of the species may
have on their livelihoods.
The Service uses the recovery team to consider each comment on a recovery plan,
and, where needed, incorporate the comments into the final recovery plan. A record
of how comments on a recovery plan are considered is kept and made available for
public review. When a final recovery plan has been completed and approved by the
Services appropriate Regional Director, it is made available to all interested parties.
A Notice of Availability is published in the Federal Register and the Service ensures
that all of the identified concerned public is aware of the completion of the plan.
In addition, notices are often placed in newspapers throughout the range of the species.
The Delisting Process
The process of delisting species uses the same scientific rigor and full public participation process as the process for listing species. The Service regularly assesses
the criteria listed in the recovery plan that are used as a target to estimate when
a species may have sufficiently recovered to be reclassified as either a threatened
species (recovered from being endangered) or as a fully recovered species and removed from the list of species protected by the ESA. Likewise, the most recent scientific and commercial data, after undergoing peer review, are used to assess the
current status of the species. Often, the factors used to determine whether a species
has recovered include the species population size, recruitment, stability of habitat
in terms of habitat quality and quantity, the degree to which habitat areas are connected to one another, and the control or elimination of the threats that led to the
need to list the species.
As already mentioned during the previous review of the listing process, the public
has the opportunity to petition the Service to delist a species at any time. Likewise,
as already discussed, the petition will trigger a process where the petition is first
reviewed for presenting substantial information, and, if it passes that test, within
12 months the action requested in the petition will be assessed, using the best available scientific and commercial data. If it is judged that the petitioned action is warranted, the Service will move to propose delisting the species, unless that rulemaking is precluded by other higher priority actions.
Outside of the petition process, as recovery of a species progresses, the recovery
team is often requested to assess the evidence that the species may no longer meet
the definition of an endangered species or threatened species, including consideration of evidence that it has reached the goals identified for its recovery. Again, the
best available scientific and commercial data are used, along with the opinions of
experts on the species, its habitat, and land management practices. If the species
no longer meets the definition of a threatened species or an endangered species,
then a proposal to downlist or delist the species will be prepared.
As is the case for the process of listing a species, a proposal to delist or reclassify
a species is published in the Federal Register and announced in selected newspapers
throughout the range of the species. The Service schedules public meetings during
the comment period so that all of the concerned public will have the opportunity
to provide comments on the proposed action. All comments are carefully considered
and a record, available to the public, is kept on the decisions made with respect to
the comments.
If, after this process, it is determined that a species has recovered sufficiently to
merit delisting or reclassification, then a final decision is made and published. A determination that a species has fully recovered will result in the species being removed from the list of species protected by the ESA.
Independent Scientific Review of Service Decisions
Service decisions under the Endangered Species Act are sometimes controversial,
and there have been several cases in the recent past where the scientific underpinning of the Services decisions has been subject to independent scientific review.
The U.S. Fish and Wildlife Service and the National Marine Fisheries Services
listed wild Atlantic salmon in eight Maine rivers under the ESA as endangered in
November 2000. Critics of the decision argued that a distinct wild genetic identity
for salmon no longer existed because of artificial stocking and the resultant interbreeding. The controversy in Maine that accompanied the ESA listing led Congress
to request the National Research Councils (Council) advice on the science relevant
to understanding and reversing the declines in Maine salmon populations. The
23
charge to Councils Committee on Atlantic salmon in Maine included an interim report that focused on the genetic makeup of Maine Atlantic salmon populations,
which was published in January 2002. The report validated the science behind the
Services listing action in Maine and the need for recovery, stating strong evidence
of genetic distinctiveness. The charge for the final report, published in December
2003, included a broader look at factors that have caused Maines salmon populations to decline and the options for helping them to recover. The U.S. Fish and
Wildlife Service and the National Marine Fisheries Service are actively working
with partners to alleviate threats to salmon recovery in Maine.
In 2001, the Departments of the Interior and Commerce enlisted the National Research Council for evaluation of the scientific analysis leading to the jeopardy biological opinions written by the Service and the National Marine Fisheries Service
on operations of the Klamath Water Project. The Council found strong scientific support for all components of the Services biological opinion, except for one measure
relating water quality to water levels in Klamath Lake, which was based on professional judgment. The Council recognized that agencies charged with ESA responsibilities must sometimes use expert professional judgment when the scientific information needed to inform a decision is lacking or inconclusive.
In 2008, the Service issued a jeopardy biological opinion to the Bureau of Reclamation regarding the Continued Long-Term Operation of the Central Valley
Project and State Water Project (CVP/SWP opinion) and included a reasonable and
prudent alternative that required what is called a fall action to protect delta smelt
and their habitat. The scientific information that the Service used in the 2008 CVP/
SWP opinion has now been reviewed by five separate independent peer review processes, including a 2010 review by a National Research Council panel. While these
reviews identified elements of the opinion that might have been handled differently
or justified more thoroughly, they all largely affirmed that the Service used the best
available scientific information and applied that information in a conceptually sound
and scientifically justified manner within the biological opinion.
Litigation Challenging the Services Central Valley Project and State
Water Project Biological Opinion
The science underlying the Services CVP/SWP opinion is also the subject of ongoing litigation. With regard to recent comments made by former U.S. District Judge
Oliver Wanger, we firmly believe that wise decisions about the future of the Bay
Delta must be guided by the best available science. The Department stands behind
the consistent and thorough work that our scientists, in this case from the Service
and Bureau of Reclamation, have done on the Bay Delta over many years. Their
expertise and professionalism remain vital to the success of our efforts to meet the
co-equal goals of improving water reliability and restoring the health of the Bay
Delta.
We also believe that, when questions arise regarding the integrity of scientific
work, it is important to resolve them swiftly, independently, and decisively. We disagree with Judge Wangers comments last month, and we recognize and appreciate
his effort to clarify those comments before his retirement. Still, we believe it is important that we follow the Departments standard procedures for reviewing questions of scientific integrity, so that we can resolve them definitively. Therefore, the
Department has instructed the scientific integrity officers of the Service and the Bureau of Reclamation to retain independent experts to evaluate the allegations made
by Judge Wanger.
Conclusion
In closing, Mr. Chairman, I would like to emphasize the importance the Service
places upon having a science-driven, transparent decision-making process in which
the affected public can participate effectively. The Service remains committed to
conserving Americas fish and wildlife by relying upon the best available science and
working in partnership to achieve recovery. Our scientists and managers continue
to do an exceptional job, under increasingly difficult circumstances, of using the best
available scientific information to make decisions that comply with the law, can
withstand challenge and thus can be trusted by the public we serve.
Thank you for your interest in endangered species conservation and ESA implementation, and for the opportunity to testify. I would be pleased to respond to any
questions you and other Members of the Subcommittee might have.
Mr. BROUN. Thank you, Mr. Frazer, and I appreciate you staying
within your five minutes.
24
Judge Manson, I now recognize you for five minutes.
STATEMENT OF HON. CRAIG MANSON, GENERAL COUNSEL,
WESTLANDS WATER DISTRICT
Mr. MANSON. Thank you, Mr. Chairman.

Mr. Chairman, Congresswoman Edwards, Members of the Committee, I appreciate the opportunity to appear here before you
today on this most important subject. I will note that most of my
biography is in my written statement. I would like to add to that,
however, that I grew up in a community of scientists and I have
the greatest respect for scientists. I took pride in the work of the
people at the Fish and Wildlife Service and the National Park
Service whom I oversaw during my tenure as Assistant Secretary.
I am also pleased that Professor Jonathan Adler is here because
he is one of the most cogent and organized voices on issues of
science and policy in academia today. So if you dont want to believe me, believe him, because as I note in my written testimony,
my writings which are meager compared to his and my testimony
has been criticized or critiqued in hundreds of law review and
scholarly articles, and his has been largely praised. So please pay
attention to his testimony.
Now, the issue of science and policy in the ESA I compare in my
written testimony to the push-me, pull-you that was the fictional
species that Dr. Doolittle discovered in the first book written about
Dr. Doolittle. It is described as having no tail but two heads that
pulled in opposite directions, and sometimes that is the way science
and policy are with respect to the ESA.
I want to summarize my written testimony in about five points,
but I will depart from those points to comment since I was named
specifically in Congresswoman Edwards opening statement to address that issue as a matter of fact. I found it curious that the Inspector General of the Department of the Interior took two years
after I had left the Department to come ask me anything about any
of those cases. I found it interesting that during the time that any
of these things were happening, no one approached me and asked
me any questions about any of those things. And so it made me
suspect of their motives and calls into questionin my mind at
leasttheir integrity.
Now, I want to talk about the incident with Gary Frazer. Gary
was the one who brought to my attention a flaw in a rule that we
were issuing, and I appreciated that very much. The problem was
one of litigation. I was faced with one of two choices: either not
publish the rule and be found in contempt of Federal Court, or publish the rule with the inaccurate information and then republish an
amended rule, which is what we did. We published an amended
rule with the correct information. So we made the deadline imposed by the Federal Judge, were not held in contempt, and got the
accurate information out there in any event.
But let me go back to my five points. First, there are distinct
rules for science and policy in the ESA and some scientists, lawyers, and policymakers misunderstand the relationship between
policy and science in ESA decision-making. We make not scientific
decisions but science-informed decisions in the ESA and our science
must be of the highest quality in order to do that.
25
My second point is that we have to stop pretending that the ESA
is not a politicized statute. It is. If it were not, this Committee
would not be holding this hearing. It obviously is because it deals
with the economics and the property rights of individuals and these
are constitutional rights protected by our great charter.
The third point I want to make is that there has to be some accountability for everyone involved in the system from political appointees through scientists, and it is the job of the executive branch
to oversee the work of its employees, and that is what happens in
most cases that some have misconstrued as political interference.
Finally, the ESA decision context presents a poor fit between
science and policy, according to Professor J.B. Rule, and one reason
for that is the imposition of the regulatory scheme immediately
upon the making of a scientific finding. In my written testimony I
describe how that might be fixed, and I would be glad to answer
questions about that or any other matter that comes before the
Committee while I am here today.
[The prepared statement of Mr. Manson follows:]
PREPARED STATEMENT
THE HONORABLE CRAIG MANSON, GENERAL COUNSEL,

WESTLANDS WATER DISTRICT
OF
Chairman Broun, Congresswoman Edwards, and Members of the Subcommittee:

My name is Craig Manson. I am a specialist in law and public policy, currently
serving as General Counsel to the Westlands Water District in Californias Central
Valley. Westlands is the largest agricultural water agency in the United States.
Prior to my present appointment in May 2010, I was a professor at the Capital Center for Public Law and Policy at University of the Pacific, McGeorge School of Law
in Sacramento, California. I taught administrative law, natural resources law, and
public policy development, among other things. I held that position from January
1, 2006 to April 30, 2010.
From February 19, 2002, until December 31, 2005, I served as Assistant Secretary
for Fish and Wildlife and Parks in the United States Department of the Interior.
I oversaw the National Park Service and the United States Fish and Wildlife Service. I had responsibility for policy oversight of a number statutory programs, including the Endangered Species Act (ESA).
Immediately prior to my service as Assistant Secretary of the Interior, I was a
Judge of the Superior Court of California in the County of Sacramento.
From 1993 to 1998, I was the General Counsel of the California Department of
Fish and Game. The department implements the California Endangered Species Act
and coordinates with the federal government concerning the states responsibilities
under the federal Endangered Species Act.
I have published articles in a number of journals, including Environmental Law
(published by Lewis & Clark Law School, Portland, Oregon), the Texas International Law Journal, the Duke University Environmental Law & Policy Forum, the
Environmental Law Institutes Environmental Law Forum and others.
As Assistant Secretary of the Interior, I testified before congressional committees
on numerous occasions and spoke to professional groups many times about the Endangered Species Act. My writing and testimony has been cited, quoted, or criticized, for better or for worse, in hundreds of scholarly publications.
Today the committee reviews the nexus between science and policy in the Endangered Species Act. This is an issue of overriding importance for both the conservation of species and for the property rights of individuals across the nation. Unfortunately, it is a question that is neither new nor unique. Since the beginning of the
age of federalized environmental activity in the late 1960s and early 1970s, science
and policy have seemingly behaved like that rarest of all species, the Pushmi-pullyu,
discovered by the multi-lingual fictional naturalist, Dr. Doolittle. 1
1 They had no tail, but a head at each end, and sharp horns on each head. They were very
shy and terribly hard to catch. The [Africans] get most of their animals by sneaking up behind
them while they are not looking. But you could not do this with the pushmi-pullyu-because, no
matter which way you came towards him, he was always facing you. H. Lofting, The Story of
Continued
26
The Pushmi-pullyu science-policy approach to the ESA and other environmental
statutes raises fundamental issues for resolution. In the last six months, Members
of both apolitical parties in both the House and the Senate have strongly criticized
the Fish and Wildlife Service and the National Marine Fisheries Service for using
bad science in important decisions. Most recently, a federal judge excoriated not
just an agency, but two individual scientists by name for misleading the court. The
judge said that the scientists were engaged in an attempt to mislead and to deceive
the court into accepting what is not o only not the best available since, its not
science. He went on to say that There can be no acceptance bay court of the
United States of the conduct that has been engaged in in this case by these witnesses.
Clearly there is a problem with the manner in which science is being applied in
significant matters involving the ESA. I now offer my view of the issues and a
scheme for resolution.
1. Some scientists, lawyers, and policymakers misunderstand the relationship between science and policy in ESA decision-making. A good amount of this misunderstanding springs from certain statutory language itself. In describing the
process of determining whether a species is threatened or endangered, section 4 of the statute says:
The Secretary shall make determinations required by subsection (a)(1) of this
section solely on the basis of the best scientific and commercial data available
...
16 U.S.C. 1533(b)(1)(A).
The use of the term solely has led to the belief that there is no room for anything but a scientific basis for listing decisions. There is, under this belief, no space
to be given over to policy decisions. Indeed, perhaps this interpretation of this part
of the statute is correct.
But this interpretation has over time been exaggerated into two other beliefs
that are demonstrably incorrect. The first fallacy is that all listing decisions are
purely the purview of field scientists, the closer to the bottom of the organization,
the better. The second fallacy is that all decisions having to do with the ESA are
safeguarded against so-called political interference.
The wrong-headedness of the first fallacy is apparent in the statute itself. The
statute does not commit listing decisions to the primary investigating biologist in
the field. The statute commits those decisions to the Secretary. While some degree
of delegation is expected, as long as the Secretary or the Secretarys designee has
made a listing decision based on the best available science, the decision is valid. The
Secretary has the power to determine in the first instance what constitutes the best
science available to the Secretary. And in doing so, the Secretary or the Secretarys
designee may disagree with scientists in the field. Science managers may direct
science staff to go back and do it over if those managers believe the best science
has not been used. They have not only the power, but the obligation to do so.
The second fallacy is also belied by that statute itself. Not all ESA decisions are
off-limits to considerations of policy. For example, section 4(b)(2) of the ESA deals
with the designation of critical habitat, said by some to be one of the most important features of the act. However, section 4(b)(2) requires that the Secretary in designating critical habitat
tak[e] into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he
determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based
on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species
concerned.
16 U.S.C 1533(b)(2).
Even the listing portion of section 4 requires that the decision-maker
tak[e] into account those efforts, if any, being made by any State or foreign
nation, or any political subdivision of a State or foreign nation, to protect
such species, whether by predator control, protection of habitat and food supDoctor DolittleBeing the History of His Peculiar Life at Home and Astonishing Adventures in
Foreign Parts, Never Before Printed, p. 81 (New York: Frederick A. Stokes & Co., 1920 [Tenth
Printing Nov. 1922])
27
ply, or other conservation practices, within any area under its jurisdiction;
or on the high seas.
16 U.S.C. 1533(b)(1)(A).
So what is the lesson here? It is that the ESA requires science-informed decisions
and not merely scientific decisions.
2. Some scientists, lawyers and policy-makers do not understand the different
functions of science and policy. As I and Professor Adler and others have said,
science is observational and thus seeks to tell us what is, what was, and
occasionally what might be. Policy is the determination of the body politic as
to how it desires to act, given the observed conditions. The infinite political options in the face of certain conditions are not to be dictated by scientists but
by those given such authority by law.
3. Some scientists, lawyers and policymakers fail to comprehend Renaults Other
Surprise: 2 The ESA is a Politicized Statute.
That the ESA is a politicized statute is no surprise to any but the most nave.
In fact, the ESA did not involve politics, this committee would not be holding this
hearing.
The ESA is necessarily politicized because it involves the protection of certain natural resources at the expense of private property, economic activity, and other natural resources. Although not intended by the drafters, implementation of the ESA
has become a win-lose adversarial process. The politicization of the ESA began at
its inception and has carried on through every Administration and Congress since
then.
To say that the ESA is politicized is really to make no more than the point that
there are competing policy decisions to be made, whether we recognize that or not.
In fact, all sides need to stop pretending that the ESA can be administered in a
politically neutral fashion. later in this testimony, I suggest a solution that will
serve to put the political decisions in proper context. There are several types of political influence that are involved in ESA implementation; some are proper and others are improper.
Political Interference Generally
Shortly after I became Assistant Secretary, a Member of Congress summoned me
and the then-director of the Fish and Wildlife Service to his office. In his district
was a large military base that had been closed under the BRAC process. Businesses
and local governments were interested in seeing the reuse process move quickly.
The Congressman (who to my knowledge had no biological training) 3 complained
that the Fish and Wildlife Service was holding up the process by demanding too
many studies and too much mitigation for potential impacts to threatened and
endangered species. The Congressman asked us to get the Service to cooperate
with the other parties.
We left having promised the Member no more than that we would look into the
matter.
Such contacts by Members of Congress with the Secretary, the Deputy Secretary,
the Assistant Secretary, and the Service Director are quite common. I regard such
contacts as political contacts since they involve a Member of Congress and appointees of the President. Such contacts generally are not improper. Members of
Congress have a legitimate role in seeing that the Executive Branch is doing its job
in a general sense and more specifically in not disadvantaging the Members constituents. 4
What would make this type of contact improper? In this case, the Member essentially asked that we review the science and the application of the science in the particular case. If the Member had asked us to change the Services science based solely
on political considerations, that would be improper. If we in fact ordered the Service
2 Rick: How can you close me up? On what grounds?. Captain Renault: Im shocked, shocked
to find that gambling is going on in here. [ A croupier hands Renault a pile of money]. Croupier: Your winnings, sir. Captain Renault [sotto voce]: Oh, thank you very much. [aloud]
Everybody out, at once! Casablanca (1942)
3 I believe he sold automobiles before being elected to public office.
4 Curiously, this particular Member, endorsed by the Sierra Club, and with a 100% rating
from the League of Conservation Voters, believed that what he was doing might be improper.
As we left his office, he said You know, if I heard of any other Member having this conversation, Id be all over them. But, hey, its my district, you understand?
28
to change its science solely on political considerations, that would be improper. Neither occurred in this case.
Political Interferencethe Executive Branch
An issue that receives much attention in the press is the alleged political interference by Executive Branch political appointees. The story usually alleges that an
appointee with no scientific training edited a scientific document or changed a scientific conclusion produced by the career staff. These stories are usually wrong on
several counts.
First, the appointees in the Executive Branch have the right and the duty to oversee the work of the career staff. This means more than simply rubber-stamping the
work product of the career staff. 5 Since the decisions under the ESA have regulatory effect, these decisions must be supported by substantial evidence. It is important that before any document is given effect by the signature of the Secretary, the
Assistant Secretary or the Director, that it be reviewed at all levels to ensure that
its conclusions are supported by the evidence. If a conclusion is not supported by
the evidence presented, that conclusion cannot and should not be stated. It is completely appropriate for appointees to review documents in this manner. One need
not be a biologist to conduct that sort of review. In fact, judges do this all of the
time in a variety of fields. This does not constitute political interference.
Furthermore, many ESA decisions involve questions of biological science for
which the available scientific database is either sparse or inconclusive. J.B. Ruhl,
The Battle Over ESA Methodology, Envt L. (Mar 2004). In such cases, it is not improper for an appointee to challenge the gap-filling by agency scientists. The struggle in this respect between scientists and agency policymakers is nothing improper
or nefarious, but rather expected, as Professor Ruhl explains.
In fact, the Constitution of the United States demands protection of private property from arbitrary, capricious, and otherwise unlawful actions by agents of the government. The Executive Branchs officials have an oath-taken duty to ensure that
private property and other liberties are preserved.
Second, it is alleged that appointees impose the policy views of the administration.
This by itself is not improper.
[A]n agency to which Congress has delegated policy-making responsibilities
may, within the limits of that delegation, properly rely upon the incumbent
administrations views of wise policy to inform its judgments. While agencies
are not directly accountable to the people, the Chief Executive is, and it is
entirely appropriate for this political branch of the Government to make such
policy choicesresolving the competing interests which Congress itself either
inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.
Chevron USA Inc. v. Natural Resources Defense Council,
467 U.S. 837, 86566 (1984), per Stevens, J.
Furthermore, it is not improper for an appointee to inquire whether there exists
science which supports the Administrations view of a particular problem or issue.
Where competing scientific views exist, it is not improper for an appointee who oversees an agency to select or direct that science be used which more nearly aligns with
the administrations policy views.
Finally, it is not improper for an appointee to state the Administrations policy
view and direct that science which supports that view be found.
It would be improper, having been told that no science exists to support the Administrations policy view, for an appointee to nonetheless implement that view
when that statute requires the best available science as the basis for the decision.
Science, Law and Policy
What about science? What of the complaints of scientists that their work is edited
or disregarded? There are several answers to this. First, there has been no scientifically valid study of this issue. The studies that have been done rely on recycled
anecdotal data. But assuming that there are valid complaints in this area, the following should be noted.
5 Within days of becoming Assistant Secretary, I held a staff meeting of both appointees and
career staff. I told them, among other things, paraphrasing a well-known Washington lawyer,
Im the Assistant Secretary here. Im not a potted plant. I didnt expect any member of the
staff to be a potted plant either.
29
First, no organization in the world takes as its final position a first draft produced at its lowest level. Theres a reason that there are levels of review-recall, no
potted plants. This may difficult for some to accept.
Second, what passes for science in the ESA context frequently consists of little
more than literature search, especially with respect to listing of species. Thats because the Fish and Wildlife Service has virtually no research capacity and few Ph.d.
scientists in the field. As a result, many scientific documents rely on the interpretation and policy leanings of their authors. In that event, policymakers are entitled
to use their judgment about how the document will be presented.
Third, as Professor Ruhl has noted, ESA decision contexts present a poor fit between science and policy. Ruhl says that the law often requires scientists to answer
questions that dont make sense to them. When scientists and policymakers dont
understand each other, then chaos and strife will reign in their relationships.
The ESA exists at the confluence of science, law, and policy. It is not a purely
scientific decision scheme. Nonetheless, its decision contexts must be science-informed. They also may be policy-informed and this must not be mistaken for improper or unlawful political influence.
4. In the present Administration, political apathy rules. As I have previously explained, there is an obligation for the Executive Branch to supervise the work
of its employees. And as I have explained, this can be done within the law. In
the present Administration, political apathy, rather than political interference,
reigns. This attitude is just as bad as and perhaps worse than alleged political
interference. Leaving the policy decisions to the foot-soldiers with no direction
can only lead to catastrophe. Thats what has happened in one of the most important and sensitive issues of the daythe San Francisco Bay Estuary. No
effective policy oversight led the federal judge to castigate the two government
scientists. And time and time again, the accountable officials in Washington
have sought to duck their responsibilities, even when taken to task by Members of Congress.
5. The ESA Contains a Structural Flaw Which Exacerbates Hostility Toward
Science. The ESA imposes it regulatory scheme immediately upon the listing
of a species or the designation of critical habitat. Thats why all the major
fights are about the science and why scientist-advocates are so strident in their
views even if their science is poor. The statute, in an effort to minimize strife
over science, has in fact significantly heightened it. The view that neutrally applied science is an effective method to solve political issues is a relic of the
nineteenth century which was thoroughly discredited in the twentieth century.
We need to return to the notion that science can tell us what is, while policy determines what ought to be done. To do that, the listing decisions should be de-coupled from the automatic, discretion-less application of regulation. That would require Congressional action. Additionally, the quality of science would be vastly improved and court litigation sharply reduced if the Secretary was required to make
listing determinations by formal-rulemaking under the Administrative Procedure
Act.
Thank you for inviting me on this important topic. I am available for any questions the committee may have.
Chairman BROUN. Thank you, Judge.

I now recognize our next witness, Mr. Vincent-Lang, for five minutes.
STATEMENT OF MR. DOUGLAS VINCENTLANG,
SENIOR BIOLOGIST, ALASKA DEPARTMENT
OF FISH AND GAME
Mr. VINCENT-LANG. Good morning, Mr. Chair, Ms. Edwards,

Committee Members. Thank you for the invitation to speak with
you today.
Species in Alaska have increasingly become targeted for listing
based solely on speculated risks such as climate change despite
their currently healthy status. This is best exemplified by the decision of the U.S. Fish and Wildlife Service to list polar bears as
threatened species worldwide. Polar bears are listed based on models that hypothesize that climate change will result in a decline of
30
sea ice habitats and a speculation that lost sea ice habitat will
threaten currently healthy populations with extinction by
midcentury. This listing was made despite the fact that the worldwide polar bear population remains at all-time record numbers.
Furthermore, many underlying critical assumptions and
hypotheses in the models went untested.
Alaska disagrees that the Act should be used as a precautionary
tool to list currently healthy species based solely on model results
of future threats such as climate change. The State is challenging
this listing and the precedent it is setting. The National Marine
Fisheries Service recently proposed to list ringed seals, which number between three to seven million based on the same modeling approach, an action we are also opposing. Ultimately, what species
could not be listed?
It is apparent to us that the Act is being used by federal agencies
to gain control over landscapes and seascapes rather than to arrest
species extinction. We do not believe Congress intended the Act to
be used in this manner, nor do we believe Congress intended the
Act to be used by federal agencies to wrest control of currently
healthy populations from state management authority.
Another issue is a threshold question regarding when it is necessary to list a species. In the past, species were listed based on
relatively high risk of extinction within the near-term future. Recently, however, federal agencies have begun extending the period
of foreseeable future into the more distant future, yet retaining low
risk of extinction probability. This raises the question as to whether species that have low risk of extinction within the immediate future should be precautionarily listed. It also raises the question as
to how far into the future can population trends be reasonably predicted. Finally, what is a reasonable level of extinction risk?
We are concerned with how recovery goals are being established
and used in Section 7 consultations also. For example, the recovery
goal for delisting Steller sea lions in western Alaska numbers over
100,000 animals. This is far higher than simply needed to remove
the risk of extinction in our opinion. However, despite the fact that
the population currently is numbering over 73,000 animals and
growing overall across its range, the National Marine Fisheries
Service has released a new Biological Opinion that found that fishing in some areas of the western Aleutians is jeopardizing the stock
and adversely modifying its habitat and has adopted new closures
and restrictions to fishing. These closures are economically devastating to local economies and raise environmental justice concerns.
The State raised serious questions regarding the foundational
science associated with this decision. The National Marine Fisheries Service did not conduct an independent review of their work,
which would have highlighted the analytical shortcomings the
State identified. In fact, a subsequent independent analysis substantiated many of the scientific concerns identified by the States
and affected users.
This raises a question as to whether recovery goals are being set
too high. Should recovery goals reflect the number required to remove the risk of extinction or to a number higher that represents
some level of historical abundance? Should recovery plans contain
31
non-population objectives that must be achievedfor example,
greenhouse gas emission targets?
Another concern is the manner in which the two Services identify
subspecies or Distinct Population Segments for listing under the
Endangered Species Act. In 1973, Congress had no way to predict
the genome of several plants and animals could actually be
mapped. We know now enough about genetics to detect even the
most subtle differences not just between species but individuals
within given species. Couple this knowledge with the ability to use
the Endangered Species Act to list subspecies and distinct population segments and every local population with slight geographic
or genetic differences or population at the edge of species range become candidates for ESA listings, regardless of their overall abundance of the species.
Alaska is also concerned with how critical habitat is being designated. Following its decision to list the polar bear as a threatened
species, the U.S. Fish and Wildlife Service listeddesignated a
vast area of Alaska and its offshore areas as critical habitat. The
area designated is the largest ever designated for a species and encompasses an area larger than the size of California. The designated habitat includes any place a polar bear might roam during
its life. This is a dramatic deviation from previous critical habitat
designations where specific areas of critical importance were only
designated. The State and others are challenging this designation
as well as what we believed were serious underestimation of the
economic impacts associated with this designation.
Finally, when Congresswhen passing the Act, Congress clearly
identified a unique role for States and all Endangered Species Act
decisions. This role is contained in Section 4(i) of the Act. This section clearly grants States a place at the table in all ESA decisions,
including the application of science in these decisions. Unfortunately, States are not being given equal deference on science during implementation of the Act. Instead, the Services are increasingly using their deference to discount valid questions raised by
States on federal interpretation of science. They are also using
their deference as a basis for their defense of flawed science. We
believe States should have equal deference in science in all ESA decisions.
Thank you for the opportunity to testify and I look forward to
any questions you may have.
[The prepared statement of Mr. Vincent-Lang follows:]
PREPARED STATEMENT OF MR. DOUGLAS VINCENT-LANG,
SENIOR BIOLOGIST, ALASKA DEPARTMENT OF FISH AND GAME
Thank you for the invitation to speak with you today. My name is Doug VincentLang. I am a Special Assistant to the Commissioner of the Alaska Department of
Fish and Game (ADF&G).
Today I would like to address concerns the State of Alaska has with the application of science in several recent Endangered Species Act (ESA) decisions in Alaska.
Congress passed the ESA as a tool to ensure that species would not become extinct.
The act was meant as the ultimate safeguard and has been used successfully to prevent species extinctions where species were in significant decline and facing immediate risk of extinction, and when the threats to the species survival were imminent
and easily identifiable and manageable. It is a goal we all should support. It is one
Alaska supports.
An example of the successful application of the ESA in Alaska was the Aleutian
Canada (Cackling) Goose. These geese were in precipitous decline. The main threats
32
were identified to be predation by foxes and loss of overwintering habitat. The
threats were addressed and the species recovered and was removed from the ESA,
notably without designation of critical habitat.
Recent ESA actions, however, have caused concern about how the ESA is being
applied in Alaska. Species in Alaska have increasingly been targeted for listing
based solely on speculated risks such as climate change, despite currently healthy
and stable numbers. This is best exemplified by the decision by the U.S. Fish and
Wildlife Service (USFWS) to list the polar bear as a threatened species worldwide.
The polar bear was listed as a threatened species based on habitat envelope models
that hypothesized that climate change will result in a decline of sea-ice habitats,
and on speculation that lost habitat will threaten currently healthy populations
with extinction by mid-century. This listing was made despite the fact that the polar
bear population remains at all-time record numbers, despite past sea ice loss which
should have caused population declines if the models are right, and despite that
many underlying hypotheses and assumptions in the models were and remain untested.
The decision to list polar bears was based largely on habitat envelope models.
These models use present-day species-habitat relationships to speculate on the potential distributions and viability of species under future climate conditions. The
utility of these models, however, to assess species viability is questionable. Predictions of species responses based solely on projected changes in the quantity and
quality of suitable habitat are likely to be inaccurate because they fail to account
for important ecological processes that influence extinction. Furthermore, shifts and
contractions of suitable habitats do not easily translate into viability assessments
or extinction risks. Consequently, these models have increasingly come under question by a wide range of experts, especially when they are applied into the distant
future (those beyond about 15 years).
In the case of the polar bear, the USFWS used a habitat envelope model to assess
the future viability of polar bears based on changing habitat and its carrying capacity related to changing ice conditions. In short, the model predicted the amount of
sea ice habitat that would be lost due to a warming climate and used this to speculate upon the future viability of polar bear populations into the distant future (in
this case 45 years) based on potential loss in habitat.
In our review of this model we raised several concerns including, but not limited
to:
1.A declining trend in habitat may not correlate to a decrease in numbers unless
polar bears are at carrying capacity throughout their range. If bears are not
at their carrying capacity, they could lose a significant portion of their habitat
and not suffer any loss in numbers or viability. This critical assumption was
not tested or verified by the USFWS. In fact, recent data has shown that it
is not likely valid. Polar bears sampled in the Chukchi Sea, an area that has
experienced the greatest amount of sea ice loss in the Arctic, have demonstrated they are not under nutritional stress and do not have reduced survival.
2.The model assumed that polar bear numbers would decrease in response to
lower observed survival rates in recent years associated with increased loss of
sea ice. However, in their analysis the USFWS only used five years of recent
data despite historic data being available dating back to the 1980s. These data
showed that about one-third of the years between 1986 and 2006 had survival
less than those required to sustain the population, yet the population over this
period actually grew or remained stable, strongly suggesting that the assumption about ice loss and survival is not valid. Simple hind-casting of the model
to verify this assumption should have been performed.
Despite the fact that the USFWS candidly acknowledged the weaknesses in their
models, the District Court for the District of Columbia stated in its upholding of the
USFWSs decision to list the polar bear that it is bound to uphold the agencys determination that the polar bear is a threatened species as long as it is reasonable,
regardless of whether there may be other reasonable, or even more reasonable, views.
The State believes this grants too much deference to a federal agencys interpretation of fundamentally flawed analyses. The State continues to believe that the
science does not justify the listing of polar bears and is appealing this decision.
There is little evidence that polar bears are threatened with extinction now or within the near term foreseeable future.
Alaska disagrees that the ESA should be used as a precautionary tool to list currently healthy species based solely on model results of future threats such as climate change. The State is challenging this listing and seeking to overturn it and
33
the precedent it is setting. The National Marine Fisheries Service (NMFS) recently
proposed to list ringed seals, which number between 37 million, based on this same
modeling approach, an action we are also opposing. Ultimately, what species could
not be listed?
It is apparent to us that the ESA is being used by federal agencies to gain control
over landscapes and seascapes, rather than to arrest species extinction. We do not
believe Congress intended the act to be used in this manner. Nor do we believe Congress intended the Act to be used by federal agencies to wrest control of currently
healthy populations from state management authority. We also believe it is imperative that underlying assumptions within models be tested before they are used to
list a species.
Another issue is a threshold question regarding when it is necessary to list a species. In the past, species were listed based on relatively high risks of extinction
within the near term future (1020 years). Recently, however, federal agencies have
begun extending the period of foreseeable future into the more distant future, yet
retaining low risks of extinction probability. An example is the beluga whale in
Cook Inlet. The NMFS listed the beluga whale as an endangered species based on
modeling that showed that the population had a greater than 1% chance of going
extinct beyond 50 years. Put another way, the models predicted that the population
had more than a 99% of NOT becoming extinct within the next half century. Their
decision to list was partially based on modeled extinction probabilities. The NMFS
actually modeled, and used as a basis for their decision, extinction probabilities for
these whales out to 300 years based on a 12-year data base. Alaska is challenging
the decision to list beluga whales in Cook Inlet as endangered. We feel the decision
is unjustified given the low risk of immediate extinction and questions related to
the validity of modeling extinction risks out to 300 years based on 12-year data sets.
This raises the question as to whether species that have low risks of extinction
within the immediate future should be listed at all. It also raises the questions as
to how far into the future can population trends be reasonably predicted ten years,
50 years, 100 years, or 300 years? Finally, what is a reasonable level of extinction
risk 1%, 10%, 20%, or 25%?
We are also concerned with how recovery goals are being established and used
in Section 7 consultations. For example, the recovery goal for delisting Steller sea
lions in western Alaska numbers over 100,000 animals. This is far higher than
needed simply to remove the risk of extinction. However, despite the population currently numbering over 73,000 animals and growing overall across its range, the
NMFS has released a new Biological Opinion (BiOp) that found that fishing in some
areas of the western Aleutians is jeopardizing the stock and adversely modify its
habitat, and has adopted new closures and restrictions to fishing in the western
Aleutians. These closures are economically devastating to local economies and raise
environmental justice concerns.
The conclusion that fishing is affecting the western stock of Steller sea lions was
based on speculation, not hard facts. Lets look at the scientific data upon which the
NMFS based their jeopardy and adverse modification:
1.The western stock of Steller sea lions as a whole is recovering and is not in
jeopardy at this time. This stock is growing at a rate of 1.4% per year and now
numbers over 73,000 animals. As noted in the BiOp itself Since 2000, the decline has ceased and in most sub-regions the wSSL population is increasing.
2.Recovery objectives established by the 2008 Steller Sea Lion Recovery Plan are
not being violated; rather the current status of the stock achieves the criteria
established by the Recovery Plan. To achieve recovery, the plan criteria dictate
that the population trend in any two adjacent sub-regions cannot be significantly declining. In fact, the data show that no two adjacent sub-regions are
significantly declining: one area does show a decline, but it is not possible to
determine if this decline is significant. The plan also dictates that the population trend in any one sub-area cannot have declined by more than 50%. The
data show that the population in one sub-region, the Western Aleutians, has
declined, but at a rate less than 50%.
3.The primary rationale for the positive jeopardy and adverse modification finding is that the Atka mackerel and Pacific cod fisheries are causing nutritional
stress to Steller sea lions. There is little sound evidence, however, that nutritional stress is causing the slower-than-desired rate of recovery in the western
Aleutians, and the scant available evidence is extremely weak. For example,
of the 17 possible life history indicators identified to assess nutritional stress
for which the NMFS has data to evaluate, only one indicator showed a positive
relationship: reduced birth rate. The remaining 16 biological indicators showed
a negative relationship. These negative findings included emaciated pups, re-
34
duced pup body size, reduced pup weight, reduced growth rate, reduced pup
survival, reduced juvenile survival, reduced adult survival, reduced overall survival, reduced pup counts, reduced non-pup counts, changes in blood chemistry,
and increased incidence of disease. And even the reduced birth rate relationship should be viewed with caution given the lack of life history data for sea
lions in the western Aleutians. Low birth rates could be attributed to factors
other than nutritional stress, for example, predation. Other recent data, collected by the ADF&G and funded by cooperative research monies from the
NMFS, confirms that first-year Steller sea lions pups in the western stock
show no evidence of poor body condition. This is yet another source of data that
calls into question the Services unproven and untested nutritional stress theory, on which their onerous Reasonable and Prudent Alternative is based. In
addition, other NMFS funded research demonstrates out-migration of branded
Steller sea lions that move between the western and eastern Steller sea lion
stock boundaries, which calls into question the assertion in the BiOp that there
is no cross-migration between the two stocks.
4.The case for restrictions for Pacific cod as an important prey species for Steller
sea lions in the western Aleutians is tenuous at best and the basis for its inclusion in the Reasonable and Prudent Alternatives and interim final rule is unjustified. Information available to assess sea lion diets in the western Aleutians
is extremely limited. Only 46 total scat (feces) samples are available, and within that limited sample, 94% of the scat samples collected contained no cod at
all. Information to assess the extent of sea lion feeding ranges is also extremely
limited. The primary justification for the expansive closures in the western
Aleutians is the foraging behavior of 3 juvenile males, which may not be representative of all Steller sea lions, particularly adult females, the population
component most critical for determining population trends.
5.While it may be theoretically possible for commercial fisheries to adversely impact the prey field of Steller sea lions, the data are very inconclusive. Studies
funded by the NMFS, but largely ignored in the BiOp, reveal that correlations
between Steller sea lion population growth and fishing intensity over time and
space indicate no significant relationship, much less a negative relationship.
6.The biomass of both Pacific cod and Atka mackerel were increasing under the
prior management regime, thus negating the need for the drastic changes implemented by the NMFS. As a result, the management measures imposed by
the final Reasonable and Prudent Alternatives are not consistent with the most
recent 2010 biomass estimates for either Pacific cod or Atka mackerel, which
were not considered in the BiOp and Reasonable and Prudent Alternative analysis even though they were available before the final BiOp was signed. These
most recent (November 2010) biomass surveys for these two species show increasing biomass in the western Aleutians, even to levels sought as targets in
the Reasonable and Prudent Alternative.
7.Finally, even accepting as true the false conclusion that fishing is negatively
affecting Steller sea lions in the western Aleutians, the BiOp presented no information demonstrating that this effect is adversely modifying critical habitat
as a whole for the western stock, as required under the ESA.
In summary, there is simply insufficient scientific evidence to conclude that fishing is causing any nutritional stress and thus jeopardy to western Steller sea lions
and adverse modification of their critical habitat, much less any level of effect that
would require immediate implementation of corrective actions at this time.
Alaska submitted extensive comments identifying these foundational science
issues, as well as regarding issues with the process used by the NMFS to reach
their decision. We do not believe that the NMFS adequately considered the States
concerns. Instead, they strongly relied on their deference to justify their conclusions.
In reaching their conclusion, the Service failed to conduct an independent review
of their work, as is normally undertaken and which we believe would have highlighted these shortcomings. In fact, a subsequent independent analysis contracted
by the States of Alaska and Washington substantiated many of the scientific concerns identified by affected users.
Another example is the northern sea otter. In this case, the USFWS recommended
threshold for delisting is 103,417 otters. We question whether a population of over
100,000 sea otters is really necessary before delisting can occur. We note that the
recovery objective for the southern sea otter is much lower (the average population
must exceed 3,090 for three years) and appears aimed at removing the risk of near
term extinction rather than attainment of long term recovery to some historic level
of abundance or supportable carrying capacity.
35
This plan also includes an ecosystem based criteria. This criterion states that sea
otters must be sufficiently abundant to either maintain, or bring about, a phase shift
to the kelp-dominated state. So not only must sea otter number over 100,000, but
kelp must be also be restored, before delisting could occur. We believe it is inappropriate to establish criteria which stipulate that listed species (in this case sea otters)
could not be delisted, despite the fact that they had attained a desired population
goal, unless an ecosystem goal (in this case a target level of kelp forests) is also restored. This is beyond the scope of species recovery.
Finally, the criterion which states that All known threats are being adequately
mitigated is problematic. All populations face a multitude of threats that potentially impact their growth rate in varying degrees throughout time. The key question is whether the overall impact of the threats in combination is negatively impacting over species viability. If the population is meeting its desired growth rate,
the influence individual threats have is somewhat irrelevant. Inclusion of criteria
for single threats allows such criteria to be used as de facto veteos on down- or
delisting decisions regardless of overall population health. As such, it is inappropriate to include specific criteria for each known threat that could prevent downor delisting if overall the population is meeting stated growth rate objectives.
In total, these recovery goals and their application raise the question as to whether recovery objectives are being set too high. Should recovery measures reflect the
required number required to remove the risk of extinction, or be set to a number
that represents some level of historic abundance or full recovery? Can threats ever
be completely removed? Should recovery plans contain non-population objectives
that must be achieved (e.g., greenhouse gas emission targets)? We believe that ESA
recovery goals and objectives should appropriately be designed to remove the risk
of extinction in the near future, not fully recover the population to some level of past
abundance or supportable carrying capacity. Once the threat of extinction in the
near term foreseeable future is removed, the species should be delisted and ESA
protections should be removed.
Another concern is the manner in which the two Services identify subspecies or
Distinct Population Segments for listing under the ESA. In 1973, Congress had no
way to predict that the genome of a several plants and animals could actually be
mapped. We now know enough about genetics to detect even the most subtle differences between not just species, but individuals within a given species. Couple this
knowledge with the ability to use the ESA to list subspecies and distinct population segments, and every local population with slight geographic or genetic differences, or populations on the edge of the species range become candidates for ESA
listing, regardless of the overall abundance of the species.
Alaska is also concerned with how critical habitat is being designated. Following
its decision to list the polar bear as a threatened species, the USFWS designated
a vast area of Alaska and its offshore areas as critical habitat. The area designated
is the largest ever designated for a species, and encompasses an area larger than
the State of California. The habitat designated includes any place a polar bear
might roam during its life. This is a dramatic deviation from previous critical habitat designations where specific areas of critical importance to recovery were designated. The State and others are challenging this designation as well as to what
we believed was a serious underestimation of the economic impacts associated with
the designation.
With respect to the economic impacts, the USFWSs Final Economic Impact Analysis for the critical habitat designation did not adequately consider the relevant factors as required under the ESA. Among other things, the Service specifically failed
to adequately consider:
The economic impacts of the additional ESA Section 7 consultations or portions
of consultations and project requirements and modifications that the adverse
modification of critical habitat standard imposes;
The economic impact of the additional costs of litigation, project delay, project
slippage, deferred production or closure, uncertainty and risk (The Service stated that potential for indirect impacts, such as litigation, uncertainty, and
project delays is real but failed to analyze such impacts); and,
The economic impact to the oil and gas industry, construction and development,
and commercial shipping and marine transportation. Specifically, the Final Economic Impact Analysis did not include a regional economic impact analysis of
reduced oil and gas activity or an assessment of the economic impacts of critical
habitat designation on commercial shipping and marine transportation.
The area designated includes the largest areas of potential oil and gas deposits
in the United States and are of economic importance to the State as well as of stra-
36
tegic importance to the Nation. The designation puts the area under federal control
and opens all permit decisions to potential litigation and delay.
Finally, when passing the Act Congress clearly identified a unique role for states
in all Endangered Species Act decisions. This role is contained in Section 4(i) of the
Act. This section clearly grants states a place at the table in all Endangered Species
Act decisions, including the application of science in these decisions. Unfortunately,
states are not being given equal deference on science during the implementation of
the Act. Instead, the Services are increasingly using their deference to discount
valid questions raised by states on federal science. They are also using their deference as a basis of their defense of flawed science. We believe that states should
have equal deference on science during all ESA decisions.
In closing, these examples point to how recent application of the ESA has
stretched the original intent of this well intentioned Act. We are challenging what
we believe is unsound science application as well as unwarranted applications of the
Act hoping to bring it back to its original intent. We believe there needs to be increased scientific rigor applied in ESA decisions. We also believe that there needs
to be limits placed on the amount of deference granted to federal agencies in ESA
decisions. States should have equal deference. We welcome legislation to fix the act.
We believe reform is needed and the time is now.
Thank you for the opportunity to speak with you.
37
Chairman BROUN. Thank you, Mr. Vincent-Lang. I appreciate
your testimony. I love your State, too. I have had the opportunity
to visit there and hunted brown bear, sheep, moose and caribou. It
is a wonderful place.
I now recognize our next witness, Dr. Wilkins. You are recognized for five minutes, sir.
STATEMENT OF DR. NEAL WILKINS, DIRECTOR,
TEXAS A&M INSTITUTE OF RENEWABLE
NATURAL RESOURCES
Mr. WILKINS. Mr. Chairman, Members of the Committee, thank

you for putting attention to this important issue.
I work as a Professor of Wildlife Science at Texas A&M University where I also direct two research institutes that are part of
AgriLife Research and Extension, part of our Land Grant University System. I have spent much of the last 20 years dealing with
endangered species science and endangered species conservation.
Science and its application to conservation has progressed substantially since the Endangered Species Act first passed, which was
in the Nixon Administration, but the Act has not had any substantial change since the Reagan Administration. Around that time, the
Service began using science-specific information to guide the process for considering candidates to the Endangered Species List, but
this approach was never added to the law. Therefore, the Service
is still required to review every new listing petition within 12
months, regardless of what we really know about the species.
The result is the well known backlog of pending decisions, litigation, and court orders. The Service has made some strides in implementing ESA through development of habitat conservation plans,
mitigation banking, safe harbors, and some newer market-based incentives like recovery credit systems. These innovations have
helped advance the science for implementing the Act, but these are
not enough.
There are still significant barriers to the use of reliable science
in guiding endangered species policy and decision-making. By not
deferring to States efforts, we miss some important opportunities
for more effective conservation actions than the one-size-fits-all
protections under ESA.
The case of the dunes sagebrush lizard provides some good lessons. In December of 2010, the Service released a proposal to list
this species which had previously been a candidate for listing starting in 1982. The lizards listing proposal caught many off guard
and created a lot of attention as the listing threatened to impact
oil and gas development in the Permian Basin of West Texas. Our
research group at Texas A&M quickly fielded a large team that in
1 month collected more information on the species range in Texas
than had been collected in the previous 40 years. Such swings in
attention and activity occur when the program is driven by lawsuits.
On a high note, the Endangered Species Taskforce in Texas, a
group that was recently put together by our state legislature,
quickly developed a conservation plan for the lizard that is now in
the federal register for review. It shows that some of the options
38
for deferring ESA recovery actions to the States can make some
sense.
The golden-cheeked warbler is another good example of how ESA
policy can drift unmoored from science. This songbird was believed
to number less than 32,000 birds when it was listed as endangered
in 1992. Our recent surveys across private ranchlands in 35 counties in Texas demonstrated that there were likely greater than
200,000 males of this species in its breeding range. This new information differs widely with what is currently in the official record,
so there is some real resistance to making decisions on this new
information as it could pose a risk for a lawsuit.
The deadline-driven process often requires the Service to use
some unreliable information that is presented in a petition as bestavailable science. And once that information is on the official
record, it is tough to counter when scientists finally generate better
information on the species.
As we have seen in the case of Rocky Mountain wolves and other
species, it is possible to recover species biologically and fail to acknowledge this bureaucratically because the law is in the way.
There are at least four things we can do about this.
Number one, we need to require a standardized, independent
peer review of scientific information used in the listing process.
Current peer reviews are inconsistent and really not independent.
With adequate peer review, we might avoid locking in on whatever
information is available at the time as persistent truth regardless
of its quality or subsequent discoveries.
Second, we can clear the backlog of listing petitions by authorizing the ESA listing process to work according to a science-based
priority system instead of a 12-month deadline. Twelve-month
deadline means the Service will often accept speculation and other
unreliable information as best science. A science-based priority system would return these decisions to field science and an open public process.
As a third recommendation, we can separate the listing and recovery functions of the ESA by delegating recovery planning to the
States as an option.
Finally, you can incentivize species recovery by linking the
delisting process to reaching recovery goals. Recovery goals mean
something and they ought to be acted upon.
This remains an important topic and deserves some action. I
thank you again for giving it your attention.
[The prepared statement of Mr. Wilkins follows:]
PREPARED STATEMENT OF DR. NEAL WILKINS, DIRECTOR,
TEXAS A&M INSTITUTE OF RENEWABLE NATURAL RESOURCES
Chairman Broun, Ranking Member Edwards, and Members of the Subcommittee,
my name is Neal Wilkins. I am director of the Texas A&M Institute of Renewable
Natural Resources and the Texas Water Resources Institute. I am also a Professor
of Wildlife Science at Texas A&M University. Thank you for the opportunity to appear before you today to emphasize the importance of using more reliable science
in the implementation of the Endangered Species Act. Before joining the faculty of
Texas A&M in 1998, I spent six years directing the endangered species and environmental compliance programs for a large private forest landowner in the Pacific
Northwest. For much of my careerand specifically in the past two decadesI have
worked to apply science to endangered species issues.
39
Working through Texas AgriLife Research, our Texas A&M scientists are deeply
engaged in research and monitoring of ESA-listed species and the candidates for
such listing. Under contract from the U.S. Fish & Wildlife Service, my team has
performed the science assessments for rangewide status reviews for golden-cheeked
warblers and black-capped vireos. Our scientists have long-term research projects
on species ranging from endangered Key deer in Florida to willow-flycatchers in the
desert Southwest. We lead large multi-stakeholder efforts to provide for the conservation and recovery of species that depend upon the Edwards Aquifer for their
survival while simultaneously providing reliable water supplies for San Antonio,
Texas. Over the past year, our science group expanded ranks to include a team of
freshwater mussel specialists that is already doing groundbreaking science on several species that are proposed for listing throughout the streams and river systems
of Texas. We also have a research team that leads the research and monitoring efforts for the dunes sagebrush lizarda species whose proposed listing as endangered and its potential implications for oil and gas development, became a subject
of widespread national media coverage throughout this summer. This work keeps
me constantly engaged in the space between science, policy and decision-making for
managing related to the ESA.
Using science to conserve species has become more difficult over the last 20 years
because although science and management have improved, the Endangered Species
Act has not been updated. The last major change to ESA was the addition of the
experimental population designation, which allowed the specific science for a species
to guide its reintroduction. Around that same time, the Service began using speciesspecific science to guide the process for considering adding new species to list, but
this approach has never been added to the law. Therefore, the Service is still required to review every potential new listing within 12 months regardless of the specifics of what we know about the species. The result is the well-known backlog of
pending decisions, litigation, and court orders.
During the last 20 years, the Service has made great strides in considering the
specific science of land management by entering into Habitat Conservation Plans.
But, for lack of changes to ESA, the Service has not been able to apply this same
approach to evaluating the conservation efforts of states, even when those state efforts are more effective and less costly than one-size-fits-all protections under ESA.
Applying good science to endangered species issues has always been tough, but
it seems to be getting tougher. The U.S. Fish & Wildlife Service faces some steep
challenges in its lead role in administering the Endangered Species Act. Lawsuits
and threats of lawsuits cause agency staff to be constantly on-guard, and this affects
the administration of the ESA at all levels. For managing endangered species
issues, the Service is now forced to focus so much on process and procedure that
the use of reliable science has suffer. In my testimony today, I want to focus briefly
on three interrelated topics:
Barriers to collecting reliable information on species status
Inadequate scientific information used for listing decisions
Inconsistent use of peer-reviewed science for ESA decision-making
I will conclude with some recommendations for a fresh look at some reforms that
would improve the use of science in guiding ESA policy and decision-making.
Barriers to collecting reliable information on species status.
In its annual report to Congress, the Service describes the status of species listed
under ESA as stable, declining, or improving. For the reports from 1988 to 2002,
it did not have information to assess status for about 40% of the species listed.
Much of this information could be collected, but is not, because of denied access of
scientists to private lands. Many private landowners simply fear that allowing scientists to access their property for endangered species surveys could create a regulatory burden and constrain their economic land use. And they have a good point
the threat. 1
How do we get beyond this? With some of our work, we have created data confidentiality agreements so that site-specific information we collect is not made public. These data confidentiality agreements have created some disputes with individual Service biologists and groups that would like to know about site-specific endangered species informationbut by protecting this information we have been able
to access millions of acres of private lands for scientific information that would have
1 For a discussion, see Wilkins, N. 2011. Improving the ESAs Performance on Private Lands
in Rebuilding the Ark: New Perspectives on Endangered Species Act Reform, ed. J.H. Adler. The
AEI Press, Washington, D.C., 5680.
40
otherwise not been collected. We are able to report the overall results of our work
it is only the detailed locations of site-specific information that remains confidential.
The dunes sagebrush lizard. In December, 2010 the Service issued a proposed
rule to list the dunes sagebrush lizard as endangered. This lizard is a habitat
specialist that lives only in sand dune outcrops dominated by shinnery oak
(a low-growing species of oak). For the lizards four county range in West
Texas, it was known to recently occur at only three locations. After the proposed listing, we conducted an intensive three to four week systematic survey
of available habitats in Texas, resulting in an additional 28 locations for the
speciesmost of which were previously undocumented. The collection of
these data required our research crew of 14 wildlife biologists to get access
to numerous private ownerships. Very few of those property owners would
have allowed access if, in fact, we had not been able to provide them with
some confidence that we would not release site-specific information from
their property to the U.S. Fish & Wildlife Service.
This lizard has been considered a candidate for ESA listing since 1982. The fact
that more scientific information was collected in a 34 week period than in the previous 39 years speaks volumes about the barriers to encourage the collection and
use of good science.
The Texas surveys were actually funded by members of the Texas Oil & Gas Association once they realized that scientific information could drive the development of
a Texas Conservation Plan for the species. The Texas Conservation Plan for the
dunes sagebrush lizard, prepared by an Interagency Task Force on Economic Growth
and Endangered Species, is a serious conservation effort that conserves important
habitats while allowing for greater regulatory certainty for oil and gas development
as well as agricultural land use. Participants in the plan hope that it will either
help avoid the species listing or support an incidental take permit if the species is
eventually listed. While the dune sagebrush lizard is not yet listed, the plan nevertheless provides for contributions to species recovery throughout the species range
in Texas. This is an excellent example of a state-level action that is likely to result
in a net conservation benefit to the species and provide some tangible benefits to
the plans participants should the species actually become listed.
There are two additional lessons illustrated here:
1. By instituting some simple reforms that allow separation of site-specific data
from regulatory oversight, we could make huge long-term gains in collecting
the scientific information needed to adequately assess species status.
2. When given the incentive, the state-based groups can work directly with affected property owners, industry, conservation groups and other public agencies to create conservation plans that get buy-in from a wide range of stakeholders.
Inadequate scientific information used for listing decisions.
A determination that a species is warranted for threatened or endangered status
under ESAa listing decisionis supposed to be based entirely on scientific
merit. There are times when the bright line of scientific merit is not as clear as it
sounds. This stems from two main reasons. First, when it comes to gaining reliable
knowledge about rare species, the science does not always lead to consensus. In
other words, real science and real scientists can legitimately disagree. Over time,
the scientific process tends to solve these disagreements. The second reason is that
decisions can be made on material that is selective or intentionally slanted to make
a case for a particular decisionthis can be the case when special interest groups
submit information.
Treating pre-existing information as authoritative science. Once a decision for
listing a species is made, there is enormous resistance to reconsidering any of
the best available science used to make the original decision. For many species, the information presented in the original status review is more influential
than information later gathered, even if the later information is of higher quality. There are several reasons for this, one being that any new scientific evidence that might challenge or question the existing status of a species may require a large bureaucratic response. Information published as part of the original listing petition tends to have a strong incumbent advantage over any new
information that might challenge the basis for a prior decisionthis is not how
science is supposed to work.
The golden-cheeked warbler. When it was listed as endangered in 1992, the
golden-cheeked warbler was thought to have been reduced to a population size
of less than 32,000 individuals. Most of the species potential breeding habitat
41
is on private lands across 35 counties in central Texas. Until recently, there
had been no systematic surveys to determine species status across private
ranchland. Beginning in 2008, researchers from Texas A&M began a systematic
survey to estimate the species population. Using confidentiality agreements
with private ranchers, this research team accessed hundreds of private ranches.
The surveys of suitable habitat and succeeding analyses demonstrated that
there were likely more than 200,000 male golden-cheeked warblers across the
species breeding range.
This effort demonstrated the flaws in the original information used to support
listing of the golden-cheeked warbler. As you might expect, the results were
controversial. Even though some of the results had already been accepted for
peer-review publication, the U.S. Fish & Wildlife Service required an independent peer-review process to determine if the work could be considered best
available science. Our researchers involved in this work are well-published
and serious scientists who focus their efforts on experimental design, survey
methodology, statistical analyses, and interpretation of results to gain more reliable knowledge of species status, ecology, and management implicationsso
they welcomed the peer review.
Even following a largely positive peer review, there continues to be some resistance by the Service to using the new information on golden-cheeked warblers.
There is external pressure on the Service to discredit the new information, and
it is likely that any decision to reconsider the endangered status of goldencheeked warblers would result in a lawsuit. Status reviews, compliance, consultation and recovery programs for individual species are generally managed
by a small group of staff biologists who work closely together. The threat of
controversy, increased scrutiny, and lawsuits can put a chill of resistance to accepting new scientific evidence that challenges the basis for previous decisions. 2
Decoupling some of the functions under ESA administration would likely result
in less entrenchment and more reliable use of new science for endangered species management.
Incumbent information in an overburdened system. The listing process has recently been driven by large multi-species petitions and legal action from advocacy groups seeking multiple listings. This flood of listing petitions eliminates
efforts by the Service to conduct a rational science-driven process for
prioritizing listing decisions. In evaluating the scientific evidence for these listings, the Service tends to simply accept the information as presented, particularly when evaluating the petitions for little-known and cryptic species. Consider this example from a recent 90-day finding from the petition seeking a listing decision on over 400 species in the southeastern US.
Due to the large number of species reviewed, we were only able to conduct
cursory reviews of the information in our files and the literature cited in the
petition. For many of the narrowly endemic species included in the 374 species, we had no additional information in our files and relied solely on the
information provided in the petition and provided through NatureServe. 3
When information like this is published in a 90-day finding, it is more likely
to find its way into a 12-month status review and ultimately become part of
the foundation for a listing proposal. This is another case of pre-existing information gaining undeserved authority simply because it was all that could be
used at the time, not because it was reliable.
Using speculation as best available science. At times, what is presented as best
available science is not always good enough for decision-making. This is certainly the case when speculation is mistaken for good science. When listing decisions are driven by the petition process, the speculations of scientists are
often used to support the petition.
The recent 12-month finding for five species of freshwater mussels that live in
the rivers and streams of central Texas provides a good example of the use of
speculation as best available science. The bulk of the information used to support the petitionand ultimately used to support the findingoriginated from
a collection of un-reviewed agency reports. While these reports did contain
some valuable information, they lacked standard detail on methods for data collection and they reported mainly on opportunistic surveys at bridge sites and
2 For a discussion see McCleery, R.A., R.R, Lopez, N.J. Silvy. 2007. Transferring research to
endangered species management. Journal of Wildlife Management. 71(7):21342141.
3 Federal Register Vol. 76, No. 187:5983659862
42
reservoirs. The reports made observations and offered speculation on why certain species might be absent from a sitethese speculations, once cited in the
petition, were then interpreted as fact in the 12-month finding. These species
of freshwater mussels may have indeed suffered reductions and might actually
deserve a determination of endangeredbut the current record relies on speculation that may turn out to be unreliable. Scientists speculate about cause and
effect all the timethis is part of the scientific process. Speculation is how
hypotheses are posed; and those hypotheses are then tested by collecting data.
But treating speculation as science is a mistakeand it weakens the credibility
of ESA determinations.
Inconsistent use of peer-reviewed science for ESA decision-making
By subjecting their methods, results and conclusions to the scrutiny of other experts in the field, scientists maintain standards and ultimately improve the reliability of their findings. Reliable information for many species is often scarce, lacking, contradictory and/or not easily interpreted. The only remedy is subjecting status
reviews to an independent, more consistent, and transparent expert peer-review.
Status reviews that support listings and other ESA decisions should be developed
using reliable informationsome of which may be from peer-reviewed science.
Too often, the science included in citizen listing petitions is directly relied upon
in the 90-day findings and is then codified as fact by the time the 12-month review
is completed. The 12-month reviews are sometimes subjected to ad hoc and informal
peer reviews that may amount to no more than an email distribution of the document with informal comments received. This would not pass as an independent
peer-review process in any other situation.
Conclusions
In conclusion, the effectiveness of the ESA could be improved through improving
the use of science. Specific reforms that could insure better use of science include:
Require a standardized independent peer-review of scientific information used in
the listing process. The science for inclusion in the 12-month status review deserves the greatest scrutiny; and it is that information that tends to gain a special status once published in the federal register. There has been recent action
by the Service to conduct peer-review. The current peer reviews are not independently administered; and they tend to ignore the biggest question of all: Is
the available science substantial enough to support a decision?
Clear the backlog of multi-species listing petitions by authorizing the ESA listing
process to work according to science-based priority system instead of a 12-month
deadline. The requirement to decide on each petition within 12 months often
forces the Service to accept substandard scientific information or disregard species that are a higher priority. Such a deadline also forces listing decisions into
the courts. A science-based priority system would return these decisions to field
science and an open public process.
Separate the listing and recovery functions of the ESA by delegating recovery
planning to the states as an option. This separation would create an incentive
to drive recovery programs with the most reliable science and policy innovations, supporting a more effective recovery effort. This would also remove some
barriers blocking access to private lands thus increasing the amount of information available for informing recovery actions
Incentivize species recovery by linking the delisting process to reaching recovery
goals. This would accelerate the recovery process and provide additional incentives for research and monitoring efforts that could contribute to the sciencebase for listed species.
In the end, if the ESA is to meet its goals there will need to be reforms that result
in more appropriate use of reliable science to inform policy.
Thank you for the opportunity to speak with the Committee about this important
topic.
43
Chairman BROUN. Thank you, Dr. Wilkins. As a Georgia Bulldog,
I want to welcome you and Texas A&M to the SEC.
Mr. WILKINS. We hope to do well in there.
Chairman BROUN. Welcome. Join the toughest football league in
the country.
Mr. WILKINS. Yes, sir.
Chairman BROUN. Mr. Adler, you are recognized for five minutes.
STATEMENT OF MR. JONATHAN ADLER, PROFESSOR,
CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW
Mr. ADLER. Thank you, Mr. Chairman, Congresswoman Edwards, and Members of the Subcommittee, for the invitation to testify this morning regarding the nexus of science and policy under
the Endangered Species Act.
I have submitted a longer written statement for the record and
I want to stress two key points in my oral remarks. First, it is important to distinguish between questions of science and questions
of policy. And second, the Act itself puts undue pressure on scientific inquiry. If we are concerned about scientific integrity in conservation decision-making, we have to do something about the
structure of the Act and the pressures it puts upon scientific decision-making.
As to the first point, the political debate over the use of science
under the Endangered Species Act tends to obscure the dividing
line between science and policy, and as a consequence, undermines
the development of more effective and equitable conservation strategies. Species conservation efforts are heavily dependent upon
science. Biological research is necessary to inform species conservation decisions, but species conservation is not and indeed cannot be
a purely scientific exercise. Whether a given species is at risk of extinction may be a scientific question but what to do about it is not.
The likelihood that habitat loss or the introduction of an invasive
species will compromise a species chance of survival in the wild is
a question that can be answered by science.
On the other hand, how we should interpret incomplete or ambiguous data, what conservation measures to adopt to address
threats to a given species, and at what cost, are policy questions.
Science can and indeed must inform all such inquiries, but science
alone does not tell us what to do and we dont serve the goals of
species conservation when we pretend otherwise. Debates over conservation policy are often dressed up as debates over conversation
science, and this hampers our ability to reach policy consensus and
obscures what is really at stake.
Where science is used, it is important to ferret out instances of
real scientific misconduct and science politicization. Agency personnel and others should not be permitted to distort or misrepresent scientific findings, whatever the purpose. And when true
science abuse occurs, it should be exposed and corrected and those
responsible should be disciplined, but it is also important to understand that not all disputes over science-related questions are truly
disputes about science. And further, it is important to understand
how the structure of the Act itself contributes to the politicization
and manipulation of science and how it creates incentives that
compromise the scientific integrity of conservation decisions.
44
It is now widely recognized and well documented that the Endangered Species Act itself creates perverse incentives that discourage
species conservation, particularly on private land. What is less well
understood is that these same provisions in the Act, the same regulatory structures places pressure on science and can discourage the
discovery and collection of needed scientific information about potentially imperiled species, again, particularly on private land.
Just as the threat of land-use regulation discourages the creation
or maintenance of species habitat, the threat of such regulation discourages private landowners from disclosing information and cooperating with scientific research on their land. Landowners are increasingly reluctant to allow biologists and other researchers onto
their land to survey species populations and conduct other research
out of fear of regulatory constraints that could follow the discovery
of a rare animal or plant.
Yet information about the location and status of species populations is essential to the development of effective species recovery
plans. The lack of more complete data on endangered species and
their habitat greatly complicates species conservation efforts. Yet
the Act itself compromises our ability to know which species are in
most need of help and where they may be most endangered, and
the Act itself often causes us to know far less about a species than
we should before adopting regulatory measures or other constraints
on productive economic activity.
And this is a particularly severe problem because we know that
the vast majority of species that are listed rely upon private land
for habitat. And so the Act is discouraging our ability to know what
species are on private land and what condition they are in. The Act
itself is tying one hand behind our back in dealing with the majority of species that we are concerned about. And this is particularly
important because we have what economists refer to as an information asymmetry. Private landowners are in a much better position
to know what is on their land and what condition it is in than biologists, the Fish and Wildlife Service, or research universities. If
they cant work together and if the Act discourages them from
working together, we will have a hard time developing conservation
plans and environmental strategies that will actually work.
It is the structure of the Act that does this, just as it is the structure of the Act that makes scientific judgments such as the decision
to list a species extremely consequential. When you list a species,
certain regulatory measures kick in automatically and can form the
basis of private citizen suits to force additional regulatory controls,
and as a consequence, warring factions devote substantial resources to influencing scientific outcomes. This makes science
abuse and politicization all but inevitable.
Safeguarding science requires statutory reforms that will insulate scientific judgments from policy decisions and lower the stakes
of listing decisions. More broadly, we need to make saving endangered species more important than saving the Endangered Species
Act as it is currently written.
Thank you again for the opportunity to present my views on this
important subject, and I am willing to answer any questions this
Committee may have. Thank you.
[The prepared statement of Mr. Adler follows:]
45
PREPARED STATEMENT OF MR. JONATHAN ADLER,
PROFESSOR, CASE WESTERN RESERVE UNIVERSITY SCHOOL
OF
LAW
Thank you, Mr. Chairman and Members of this Subcommittee, for the invitation
to testify regarding the nexus of science and policy under the Endangered Species
Act. My name is Jonathan H. Adler, and I am the Johan Verheij Professor of Law
and Director of the Center for Business Law and Regulation at the Case Western
Reserve University School of Law, where I teach several courses in environmental,
administrative, and constitutional law.
I particularly appreciate the opportunity to testify today about the Endangered
Species Act (ESA). I have researched and written on environmental law and policy
for over twenty years, and have conducted a significant amount of research on the
ESA and species conservation generally. My work on the ESA includes an awardwinning article, Money or Nothing: The Adverse Environmental Consequences of Uncompensated Land-Use Controls, 49 BOSTON COLLEGE LAW REVIEW 301 (2008),
and a recently published book, Rebuilding the Ark: New Perspectives on Endangered
Species Act Reform (AEI Press, 2011). Ive drawn upon this work in preparing this
testimony.
The ESA is among the nations most important and powerful environmental laws.
It is also a source of great conflict and controversy. There is little question that species conservation is an important and worthwhile endeavor. Regrettably, there are
many reasons to question whether the ESA effectively serves that goal. The Act has
likely helped prevent some species from going extinct, but the Act endeavors to do
more. There is very little evidence the Act helps species recover from the brink of
extinction and increasing evidence that the ESA itself creates incentives that undermine sound environmental stewardship and politicize scientific inquiry.
The listing of individual species, the designation of critical habitat and the implementation of conservation measures often prompt fierce legal and political battles.
Sound science is often a casualty in these conflicts as the combatants twist and manipulate the available scientific evidence to support predetermined policy preferences. Activists on all sides claim that sound science supports their respective
positions, and scoff at the junk science relied upon by the other side. In actual
fact, what often divides the respective camps is not a devotion to science, but sharply divergent policy preferences dressed up in scientific garb. The political debate
over the use of science under the ESA tends to obscure the dividing line between
science and policy and undermines the development of more effective and equitable
conservation strategies.
Species conservation efforts are heavily dependent upon science. Biological research is necessary to inform species conservation decisions. But species conservation is notand cannot bea wholly scientific exercise. Whether a given species is
at risk of extinction may be a scientific question, but what to do about it is not.
The likelihood that habitat loss or the introduction of an invasive species will compromise a species chance of survival in the wild is a question that can be answered
by science. On the other hand, what conservation measures should be adopted to
address such threats, and at what cost, are policy questions. Whether reducing the
chance that given species of fish will go extinct is worth limiting water use or imposing other regulatory controls is not a question science can answer. Science canindeed, mustinform such inquiries, but science alone does not tell us what to do.
Nonetheless, debates over conservation policy are often dressed up as debates over
conservation science, hampering our ability to reach policy consensus and obscuring
what is really at stake.
The addition of an imperiled species to the list of endangered and threatened species should be a relatively routine matter driven by scientific considerations. Unfortunately it is not. A proposal to list a species often signals the onset of fierce political and administrative battles in which true scientific concerns are subordinated to
policy objectives. One reason for this is that the scientific determination that a given
species is threatened or endangered triggers non-discretionary regulatory requirements. Therefore, the surest way to control a policy outcome is to control the
science. Activists on all sides recognize this fact, which is why activists spend so
much time trying to influence the scientific conclusions.
It is important to ferret out instances of scientific misconduct and science
politicization. Agency personnel should not be permitted to distort or misrepresent
scientific findings, whatever the purpose. The ends of species conservation and environmental protection do not justify distorting scientific inquiry. Nor does a desire
to alleviate the regulatory burdens faced by landowners, businesses, and workers in
resource-dependent industries. When science abuse occurs, it should be exposed and
corrected, and those responsible should be disciplined. But it is also important to
understand how the structure of the Act contributes to the politicization and manip-
46
ulation of science and creates incentives that compromise the scientific integrity of
conservation decisions.
It is now widely recognized that the ESA creates perverse incentives that can discourage species conservation on private land. What is less well understood is that
the same regulatory provisions of the act can discourage the discovery and collection
of needed scientific information about potentially imperiled species, particularly on
private land.
The reason the ESA creates perverse incentives against species conservation is
that the Act effectively penalizes the owners of land upon which endangered species
depend. Under Section 9 of the act, it is illegal for a private landowner to engage
in activities that could harm an endangered species, including habitat modification, without first obtaining a federal permit. Knowing violations can lead to fines
of up to $25,000 and even jail time. As a practical matter, the law requires private
landowners to obtain permission from the FWS before modifying endangered species
habitat on their own land.
Such regulations can reduce private land values and antagonize private landowners who might otherwise cooperate with conservation efforts. Writing in Conservation Biology, a group of wildlife biologists observed that the regulatory approach to conserving endangered species and diminishing habitats has created anticonservation sentiment among many private landowners who view endangered species as economic liabilities. 1 They further explained:
Landowners fear a decline in the value of their properties because the ESA restricts future land-use options where threatened or endangered species are found
by makes no provisions for compensation. Consequently, endangered species are
perceived by many landowners as a financial liability, resulting in
anticonservation incentives because maintaining high-quality habitats that harbor or attract endangered species would represent a gamble against loss of future opportunities. 2
As the late Sam Hamilton, former Director of the Fish & Wildlife Service, observed in 1993, when he oversaw FWS efforts in Texas: The incentives are wrong
here. If I have a rare metal on my property, its value goes up. But if a rare bird
occupies the land, its value disappears. 3
The effect of the ESA on private landowners, and the incentives it creates, are
important because a majority of listed species rely upon private land for some or
all of their habitat. In some cases, such regulations may even encourage landowners
to destroy or degrade potential habitat on their land. It is not illegal to modify land
that might become endangered species habitat some day in the future, nor are landowners required to take affirmative steps to maintain endangered species habitat.
There is increasing empirical evidence that the perverse incentives created by the
ESA are undermining species conservation efforts and compromising scientific inquiry. Several recent empirical studies document how the ESA undermines effective
conservation on private land. One study found that private landowners engage in
preemptive habitat destruction when the presence of endangered red-cockaded
woodpeckers places landowners at risk of federal regulation and a loss of their timber investment. 4 Providing habitat for a single woodpecker colony could cost up to
$200,000 in foregone timber harvests. To avoid the loss, those landowners at greatest risk of restrictions were most likely to harvest their forestlands prematurely and
reduce the length of their timber harvesting rotations. The ultimate consequences
of this behavior were potentially significant in that it resulted in a loss of several
thousand acres of woodpecker habitat, a major habitat loss for a species dependent
upon private land for its survival.
A second study involving the red-cockaded woodpecker similarly found that regulatory uncertainty and lack of positive economic incentives alter landowner timber
harvesting behavior and hinder endangered species conservation on private lands. 5
This study further found that a landowner is 25% more likely to cut forests when
he or she knows or perceives that a red-cockaded woodpecker cluster is within a
mile of the land than otherwise. This study concluded that the ESA has a strong
1 Martin B. Main, Fritz M. Roka, and Reed F. Noss, Evaluating Costs of Conservation, 13
CONSERVATION BIOLOGY 1263 (1999).
2 Id. at 1265.
3 Betsy Carpenter, The Best-Laid Plans, U.S. News & World Report (Oct. 4, 1993), at 89.
4 See Dean Lueck and Jeffrey Michael, Preemptive Habitat Destruction under the Endangered
Species Act, 46 JOURNAL OF LAW AND ECONOMICS 27 (2003).
5 See Daowei Zhang, Endangered Species and Timber Harvesting: The Case of Red-Cockaded
Woodpeckers, 32 ECONOMIC INQUIRY 150 (2004).
47
negative effect on the habitat of the red-cockaded woodpecker and the effect appears to be substantial.
The perverse incentives of the ESA unfortunately do not only affect the woodpeckers and other species dependent upon private timberland. A third study published in Conservation Biology found that listing a species could discourage landowners from participating in conservation efforts. 6 Based on surveys of private owners of habitat for the Prebles Meadow jumping mouse, this study found that a substantial percentage of landowners would respond to a species listing by making their
land less hospitable for it, and that the efforts of landowners who acted to help the
Prebles were cancelled by those who sought to harm it. This led the studys authors to conclude that as more landowners become aware that their land contains
Prebles habitat, it is likely that the impact on the species may be negative.
These studies, combined with numerous anecdotal accounts, taken together, provide powerful evidence that the ESA has the potential to discouraging species conservation on private land. Worse, they suggest that the net effect of the ESA on private land could be negative. Recent administrations have sought to offset these effects through various cooperative conservation programs designed to encourage voluntary conservation efforts and provide landowners with greater regulatory certainty. Insofar as these initiatives have been effective, however, they have effectively deactivated the ESA regulatory provisions.
The punitive nature of the ESAs restrictions on private land not only undermine
conservation, they also appear to be undermining the science upon which successful
species conservation efforts depend. This occurs in two ways. First, landowners are
increasingly resistant to allowing biologists and others onto their land to conduct
research, survey species populations and the like out of fear that regulatory constraints could follow the discovery of a rare animal or plant. Second, because the
listing of a species as endangered automatically triggers regulatory consequences,
there are substantial stakes up for grabs when a listing decision is made, leading
to efforts to control the outcome, without regard for the science.
Just as the threat of land-use regulation discourages the creation or maintenance
of species habitat, the threat of regulation discourages private landowners from disclosing information and cooperating with scientific research on their land. 7 The
aforementioned Conservation Biology study of the effect of listing the Prebles Meadow jumping mouse on landowner behavior found that more landowners would refuse
to give biologists permission to conduct research on their land to assess mouse populations, out of fear that land-use restrictions would follow the discovery of a mouse
on their land, than would allow such research. 8 Yet information about the location
and status of species populations is essential to the development of effective species
recovery plans. The lack of more complete data on endangered species and their
habitat greatly complicates species conservation efforts. 9 This, again, is a particularly severe problem because so many endangered and threatened species rely upon
private land. Due to information asymmetries, if private landowners do not allow
researchers on their land, important scientific information about potentially imperiled species may never be discovered.
The structure of the ESA also creates tremendous pressure to twist or distort scientific research. The decision to list a species can have substantial regulatory consequences. The ESA may require that decisions to list endangered and threatened
species are determined by the best available scientific evidence. Yet there is ample
empirical evidence that political and other non-scientific factors influence listing decisions. Species that were more charismaticthat is that are more warm and
fuzzy and those more politically popularwere more likely to be listed and to receive funding. 10 Other recent studies have found that the political and environmental attitudes of legislators on relevant congressional committees appear to influ6 See Amara Brook et al., Landowners Responses to an Endangered Species Act Listing and
Implications for Encouraging Conservation, 17 CONSERVATION BIOLOGY 1638 (2003).
7 Stephen Polasky & Holly Doremus, When the Truth Hurts: Endangered Species Policy on Private Land with Imperfect Information, 35 JOURNAL OF ENVIRONMENTAL ECONOMICS
AND MANAGEMENT 41 (1998).
8 Brook, et al.
9 See Jason F. Shogren, Rodney B. W. Smith, & John Tschirhart, The Role of Private Information in Designing Conservation Incentives for Property Owners, in Species at Risk: Using
Economic Incentives to Shelter Endangered Species on Private Lands 217 (Jason F. Shogren ed.,
2005) (noting that imperfect information complicates conservation efforts).
10 See, e.g., Deborah Dawson & Jason Shogren, An Update on Priorities and Expenditures
under the Endangered Species Act, 77 LAND ECONOMICS 527 (2001); Andrew Metrick & Martin L. Weitzman, Conflicts and Choices in Biodiversity Preservation, 12 JOURNAL OF ECONOMIC PERSPECTIVES 21 (1998).
48
ence listing decisions as well. 11 These findings should not surprise. Listing decisions
can force the federal government to adopt various regulatory measures with significant economic consequences. With so much at stake, it would be surprising if political and other factors did not influence listing decisions.
Given the structure of the ESA, various interest groups seek to manipulate the
listing process so as to trigger or preempt the imposition of land-use restrictions.
Property owners who own potential habitat for a given species are likely to oppose
listing of the species so as to prevent regulation of their land. 12 Opponents of development are likely to take the opposite view. Interest group activity also appears to
influence how quickly species move through the ESA listing process. 13 Interest
group opposition to species listing proposals increases as listings threaten development. 14 At the extreme, this has produced incentives to manipulate the scientific
evidence supporting species listing.
Delay in the listing of a species can benefit those landowners and economic interests would have borne the costs of the ESAs regulatory limitations. At the same
time, it can be harmful to conservation. 15 Delay in listing a species increases the
opportunity for landowners to respond to the perverse incentives created by the Act.
It also deprives biologists, environmental groups, conservation-minded landowners,
and others of the information that a given species is in need of assistance if it is
to survive.
Groups opposing development or resource extractive industries also have an incentive to manipulate the listing process and identify potentially endangered species
that can serve as a proxy for their other goals. Environmentalist groups have acknowledged that some species listings are sought out of a desire to control land use.
For example, Andy Stahl of the Sierra Club Legal Defense Fund acknowledged that
the ultimate goal of litigation to list the northern spotted owl was to delay the
harvest of old growth forests so as to give Congress a chance to provide specific statutory protection for those forests. According to Stahl, the owl was a surrogate
that could ensure protection for the forests under the ESA. 16 The spotted owl litigation was not without its environmental costs, however. In order to respond to environmentalist lawsuits, the FWS was forced to divert resources from more pressing
needs, compromising overall recovery efforts. 17 This does not appear to be an isolated instance, as the pattern of environmentalist litigation challenging FWS listing
decisions does not appear to align with species conservation priorities.
Insofar as such litigation sets listing priorities, it threatens to divert resources
away from those species most in need. According to the FWS, it has spent essentially all of its listing appropriations on litigation-related and administrative
costs. 18 As Professor Katrina Wyman of NYU has explained, the FWS has lost control over the listing process as decisions about whether to list species are largely
made in response to citizen petitions for listing and litigation. 19 Both environmentalist groups and development interests wage legal wars over the listing and
delisting of individual species as a proxy for fights over policy and regulatory priorities.
The ESAs current regulatory structure both discourages conservation and compromises conservation science. One possible remedy for this problem, suggested by
Professor Wyman is decoupling the listing decision from mandatory conservation
11 See, Bonnie Harllee, Myungsup Kim, and Michael Nieswiadomy, Political Influence on Historical ESA Listings by State: A Count Data Analysis, 140 Public Choice 21 (2009).
12 See Barton H. Thompson, Jr., The Endangered Species Act: A Case Study in Takings and
Incentives, 49 STANFORD LAW REVIEW 315, 350 (1997).
13 See Amy Whritenour Ando, Waiting to Be Protected under the Endangered Species Act: The
Political Economy of Regulatory Delay, 42 JOURNAL OF LAW AND ECONOMICS 52 (1999)
14 See Amy Whritenour Ando, Economies of Scope in Endangered-Species Protection: Evidence
from Interest Group Behavior, 41 Journal of Environmental Economics and Management 312
(2001); see also Amy Whritenour Ando, Do Interest Groups Compete? An Application to Endangered Species, 114 PUBLIC CHOICE 137 (2003) (finding interest group involvement in species
listings increases with the expected costs and benefits of such listings).
15 See Ando, Waiting, at 34 (Long delay in the addition of a species to the endangered species
list can reduce the likelihood that the species will escape extinction; species have even been
thought to have become extinct while waiting for final action from the agency. Thus, delay diminishes the benefits of a listing. It also reduces the costs.).
16 Quoted in Ike C. Sugg, Caught in the Act: Evaluating the Endangered Species Act, Its Effects
on Man and Prospects for Reform, 24 CUMBERLAND LAW REVIEW 1, 53, n335 (1993).
17 See Marco Restain and John M. Marzluff, Funding Extinction? Biological Needs and Political Realities in the Allocation of Resources to Endangered Species Recovery, BIOSCIENCE (Feb.
2002), at 175.
18 Katrina Miriam Wyman, Rethinking the ESA to Reflect Human Dominion Over Nature, 17
NYU ENVIRONMENTAL LAW JOURNAL 490, 497 (2008).
19 Id. at 496.
49
measures. 20 This would release the pressure to manipulate listing decisions and enable federal agencies to develop protections tailored to the needs of each species
and its circumstances. At present, however, the ESAs protections are triggered
once a species is listed, irrespective of their value for that particular species. Decoupling would also make species listing decisions less contentious and monumental,
and reduce the time and expense it takes for such decisions to be made. FWS biologists would be able to focus on getting the science right, and devote less time responding to litigation. While it would still make sense for listing to trigger a legal
obligation for the FWS to develop a conservation strategy and recovery plan, it
would not force the imposition of specific regulatory controls. This would mean that
outside organizations would no longer be able to use endangered species as a proxy
for other battles. As Professor Wyman explains, One of the advantages of decoupling the listing of a species from decisions about how it should be protected is that
there should be greater room for developing creative measures tailored to species
needs and circumstances. 21
Finally, I think it is worth stepping back and looking at the overall record of the
ESA. Congress enacted the ESA in 1973. Since that time, approximately 2,000 species of plants and animals, foreign and domestic, have been listed as endangered
or threatened. 22 The express goal of the ESA is to recover listed species so that
they no longer need the Acts extraordinary protections. Yet in nearly forty years,
this goal has been reached with scarcely over one percent of listed species. As of
this month, the U.S. Fish & Wildlife Service reports that only 48 species have been
removed from the list of endangered and threatened species. 23 Of these, only 22 are
deemed to have recovered. Of the remaining 26 species, 17 were delisted due to data
errors of one sort another, such as a mistaken taxonomic classification or undercounting of a species population, and nine were delisted because they are believed
to have gone extinct. In other words, fewer listed species have been recovered than
have been delisted because they went extinct or never should have been listed in
the first place.
The above statistics may actually overstate the Acts relative effectiveness at recovering species. In addition to the nine species that were delisted because the FWS
believes they went extinct, there are another 28 listed species believed to have gone
extinct that have yet to be delisted. 24 In addition, at least 42 additional species
have gone extinct awaiting listing under the Act. 25 Looking at FWS recoveries,
some recovered species saw their status improve for reasons wholly unrelated to the
ESA. In other cases, as the GAO has reported, species have been delisted before
their respective recovery criteria have been met. 26
As I stated at the outset of my testimony, species conservation is an important
goal. Serious efforts are necessary to stem the loss of biological diversity and to reconcile our nations environmental aspirations with other social goals. Whether or not
this committee accepts my policy recommendations, I hope all Members recognize
that substantial reform is necessary, both to insulate scientific research from political pressures, as well as to advance the cause of species conservation more generally. Saving endangered species should be more important than saving the Endangered Species Act.
Thank you again for the opportunity to present my views on this important subject, Mr. Chairman. I hope that my perspective has been helpful to you, and will
seek to answer any additional you might have.
20 Id.
at 516.
at 519.
U.S. Fish & Wildlife Service, Threatened/Endangered Species Box Score, available at
http://ecos.fws.gov/tesslpublic/pub/Boxscore.do (accessed Oct. 11, 2011).
23 See U.S. Fish & Wildlife Service, Delisting Report, available at http://ecos.fws.gov/
tesslpublic/pub/delistingReport.jsp (accessed Oct. 11, 2011).
24 Martin Miller, Three Decades of Recovery, Endangered Species Bulletin, vol. 28, no. 4
(July/Dec. 2003), 4.
25 D. Noah Greenwald, Kieran F. Suckling, and Martin Taylor, The Listing Record, in The
Endangered Species Act at Thirty, Volume 1: Renewing the Conservation Promise, Dale D. Goble,
J. Michael Scott, & Frank W. Davis eds. (Washington, D.C.: Island Press, 2006), 51.
26 See U.S. Government Accountability Office, Endangered Species Act Decision Making, GAO
08688T (May 21, 2008), at 2022.
21 Id.
22 See
50
Chairman BROUN. Thank you, Mr. Adler.
Dr. Grifo, you are recognized for five minutes.
STATEMENT OF DR. FRANCESCA T. GRIFO, SENIOR SCIENTIST
AND DIRECTOR, SCIENTIFIC INTEGRITY PROGRAM, UNION OF
CONCERNED SCIENTISTS
Dr. GRIFO. Chairman Broun, Ranking Member Edwards, and

Members of the Committee, thank you for the invitation to participate in this hearing. My name is Francesca Grifo, and I am a Senior Scientist and Director of the Scientific Integrity Program at the
Union of Concerned Scientists, a leading science-based non-profit
working for a healthy environment and a safer world.
I come here today with 30 years of training, research, teaching,
and policy experience, a passion for the natural world, and a mothers concerns about her childrens future. One of the great strengths
of the Endangered Species Act is its foundation in robust scientific
principles. Objective scientific information and methods should be
used in protecting species. The habitat needs of endangered species
should be scientifically well informed and the standard of bestavailable science must rely on impartial scientific experts. Actions
have consequences with wide-ranging implications and we need to
understand that and that means sciencemaking observations,
asking questions, analyzing results.
Unfortunately, under the previous Administration, the science of
the Endangered Species Act was attacked and it happened at every
stage of the process90-day findings to listing to recovery plans to
the designation of critical habitat and even delisting, affecting more
than 80 species. One might say so what? Except an emerging body
of research is now uncovering a hugely important range of benefits
of biodiversity for human health. In a broad sense, most ecosystem
services such as water purification and food provision have a direct
or indirect impact on our health. But ecosystems also provide more
specific benefits. Plants and bacteria are well recognized key
sources of new medicines and other important links include benefits for mental health and the complex influence of the natural environment on the spread of infectious diseases.
Many links between biodiversity and health remain unknown,
but there is a growing body of evidence that disturbances to ecosystems may have large consequences for human well being. Thus,
protecting biodiversity, both the number of species and the structure of communities helps minimize undesirable or expensive or
unintended impacts on our health.
Furthermore, three-quarters of Americans participate in active
outdoor recreation each year and spend money, create jobs, and
support the localsupport the economies of local communities
when they do. The number of New Englanders who participate in
trail-based recreation annually is greater than the combined attendance for all 81 Boston Red Sox gameshome games. An active
outdoor recreationand the outdoor active recreation economy employs five times more Americans than Wal-Mart, the worlds largest private employer.
The ESA works. Less than one percent of listed species have
gone extinct since 1973, while ten percent of candidate species still
waiting to be listed are gone. In addition to the hundreds of species
51
that the Act has protected from extinction, listing has contributed
to population increases or the stabilization of populations for at
least 35 percent of listed species, and perhaps significantly more,
as well as the recovery of such signature species as the Peregrine
falcon.
While complete recovery has been realized for just two percent
of the species listed, given the precarious state of most species
when listed, this represents significant progress. Arguably, the
most notable success of the Endangered Species Act is that listed
species improve in status through time. More species are down-listed than the converse. More species transition from stable to improving than the converse.
The science advisor asked agencies to tackle the issue of scientific integrity, and the Department of the Interior was the first
out of the box to do so. While they are well on their way to creating
a culture of accountability and scientific integrity, we look forward
to learning more about their ambitious plans for training, the
progress of the Scientific Integrity Officers, and their forthcoming
revised peer review and communications policies, and we expect
them to be good.
Science cannot be a mask behind which decision-makers can do
anything that special interests or ideology might dictate. The rightful place for science is as the basis of broad participatory and
transparent conversations about how to solve the challenges we
face. It is not okay to say the science made me do it while changing
the science to justify policy decisions.
Thank you for your interest in endangered species conservation
and for the opportunity to testify. I am happy to respond to questions you or other Members of the Committee may have.
[The prepared statement of Dr. Grifo follows:]
52
PREPARED STATEMENT OF DR. FRANCESCA T. GRIFO, SENIOR SCIENTIST AND
DIRECTOR, SCIENTIFIC INTEGRITY PROGRAM, UNION OF CONCERNED SCIENTISTS
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APPENDIX I
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Chairman BROUN. Thank you, Dr. Grifo.
And I thank the panel for you alls testimony. Reminding Members that the Committee rules limit questioning to five minutes,
the Chair at this point will open the round of questions. The Chair
recognizes himself for five minutes.
Mr. Frazer, in your testimony you state that the joint Fish and
Wildlife Service and National Marine Fisheries Service policy on
information standards under the Endangered Species Act issued in
1994 requires your biologists and managers to ensure that the information that we use is reliable and credible and represents the
best data available. Do you believe the work of federal scientists
on the Central Valley Project and the State Water Project Biological Opinion in California adhere to the standards outlined in this
policy? And if so, how do you respond to a Federal Judge stating
that the testimony of these two employees were so contradictory
and inconsistent that it amounted to deliberate deception and bad
faith on the Departmenton the part of the Department of Interior?
Dr. FRAZER. Mr. Chairman, we do believe that our Biological
Opinion was based on the best available scientific information. As
I stated in my opening statement, it has been through five separate
independent peer reviews, one by a National Research Council
panel. We disagree with Judge Wangers characterizations, but we
are taking it as a serious allegation and we are using our scientific
integrity policy to thoroughly investigate that and determine
whether there is any basis for his statements. We do note and appreciate that he sought to clarify those statements in a following
hearing that he held the week after.
Chairman BROUN. Okay. Your testimony states, the Department
is seeking independent experts to evaluate the allegations. Will
these experts be independent of the Service and the Bureau of Reclamation, independent of the Department, or independent of the
Administration?
Dr. FRAZER. We have an existing contract to go to an outside
party to enlist independent experts to be able to conduct this review, and they will provide a report to the Scientific Integrity Officers of the Fish and Wildlife Service and the Bureau of Reclamation.
Chairman BROUN. How will you ensure that the experts have
sufficient independent scientific expertise and investigative backgrounds?
Dr. FRAZER. Throughour scientific integrity policy of the Department lays out the process for conducting such reviews and we
will bewe have developed a statement of work that lays out the
qualifications and requirements of the parties that will be involved.
Chairman BROUN. Do you believe the Inspector General should
be involved in this inquiry?
Dr. FRAZER. The Departments science integrity policy and the
Services procedures dont have a role for the Inspector General in
these sorts of things. This is part of our management structure
within the Department and the Fish and Wildlife Service.
Chairman BROUN. Will the final report be made public?
Dr. FRAZER. The report will be provided to the Science Integrity
Officers of the two bureaus and they will determine whether there
68
is any basis for any sort of action. If there is an action, it would
be a conduct issue and it would be the personnel and human resources policies of the agencies that would be brought into play,
and that would be the basis of determining whether that report
would be made public.
Chairman BROUN. Well, I hope it is made public. Have you all
seen Judges inutilize their own political philosophy and bend and
tryin making decisions on ESA determinations?
Dr. FRAZER. There are many different Judges and many different
opinions, and I am not one that spends much time trying to analyze any philosophy behind those rules so
Chairman BROUN. Well, I think we have seen in many instances
where Judges have used their own political philosophies have bent
to affect how they judge things and not entirely independent and
I wonder in this case whether that might be so.
Dr. Wilkins, the Endangered Species Act requires listing determinations to be made purely based on best available science. Are
policy decisions ever made while conducting science and do scientists make choices and decisions in the course of their work?
Mr. WILKINS. That is a great question and there is a lot of nuances there. So I am in the business of training scientists, and that
means we teach them to think. And in addition to research methodologies and statistical methods and interpretations of scientific
data, we teach them how to test policy, how to develop policy innovations, how to determine the implications of policy. So there are
policy questions and there are policy implications that intentionally
become part of scientific work. I think that is appropriate and it
is mostly appropriate because that is the only way to know the difference between objectivity and when you are using a particular
policy preference to shade or distort your scientific findings. And so
that ends up being the only way to maintain objectivity and integrity I believe is to know the difference and to know the difference
of when you are presenting science versus when you are presenting
policy implications. We just simply need to ask questions in such
a way as to best inform management through our science, and
management is a form of policy.
Chairman BROUN. Thank you, Dr. Wilkins. My time has expired.
I now recognize Ms. Edwards for five minutes.
Ms. EDWARDS. Thank you, Mr. Chairman. And again thank you
to the witnesses.
Dr. Grifo, I would like to turn to you. I wonder if you have some
assessment ofduring Mr. Mansons tenure at the Interior Department that one of the most egregious examples of politicization of
science occurred, could you provide the Committee a thumbnail account of what happened during his tenure and in the years immediately after he left service in 2005?
Dr. GRIFO. Sure. I mean I think, you know, there were many,
many, many species that were interfered with. I think what was
going on was the modus operandiif you will forgive that expressionwas reallythere were three things, and it was really Ms.
McDonald who was at the core of these issues. She consistently
called field biologists in the field, used foul language, bullied them,
was incredibly abusive. You dont have to believe me; it is in the
IG report. That was one thing. I think the second was that she sent
69
internal Department of the Interior documents out to various
places, to an online gaming friend and to the Farm Bureau in California and other places. But the third which I think is the most incredible is that she changed scientific results. If we look at Gunnison sage-grouse, Gunnisons prairie dog, white-tailed prairie dog,
roundtail chub, bull trout, marbled murrelet, Arizona bald eagle,
tabernaemontana, delta smelt, I could go on and on. It is a very
long list. But what I find the most remarkable are the times that
she did it and tracked changes in a Word document and we were
able to obtain through FOIA requests and other means those documents with her changes that were clearly, you know, scientific
edits in those documents. So I dont know how much more, but I
could obviously talk for a while.
Ms. EDWARDS. Thank you. I appreciate that, Dr. Grifo. And I just
wonder if you know how many ESA listings had to be withdrawn
in the wake of the IGs finding on Ms. McDonalds misconduct?
Dr. GRIFO. There were investigations into a number of species.
You know, some were revised but not all.
Ms. EDWARDS. Thank you.
Mr. Frazer, I wonder if you can add any insight into how much
work had to be redone at Interior after Mrs.Ms. McDonald resigned?
Dr. FRAZER. At the request of the Deputy Secretary at the time,
the Service reviewed determinations that had been made and concluded that there were eight listing determinations, either petition
findings or listing determinations or critical habitat designations
that warranted revisiting and the Service revisited all of those and
revised those determinations.
There were other cases in which there have been merits challenges that were filed and we either lost those cases or we determined that we didnt have a defense and had to take them back
and redo those. And I dont have a comprehensive list of all of
those right now.
Ms. EDWARDS. Thank you, Mr. Frazer.
And now I would like to turn to Judge Manson. I noticed in your
opening statement that you actually challenge the integrity of the
IG, which strikes me because if that isyou know, if that is in
question, then I think we have some other questions.
But I would like to know whether the actions that you supported
ended up costing the government a significant amount of money in
having to redo studies and legal findings due to Ms. McDonalds direct interference. She was your employee.
Mr. MANSON. First of all, I did not challenge the integrity of the
IG. I meant to challenge the integrity of those who brought into
question some of those activities during the time that I was there
and the time that I subsequently was a law professor for 4 years.
Ms. EDWARDS. But Judge Manson, you are aware of the rework
that had to be done at thewithin the Department because of
Mr. MANSON. I am aware of some of
Ms. EDWARDS. Let me finishbecause of Ms. McDonalds conduct, and it is estimated that it may have cost at least hundreds
of thousands of dollars. That is taxpayer money that that cost. Do
you have a disagreement with that estimate? Is it too low? Is it too
70
high? Is it just about right? Can you put a price on what that mismanagement under your tenure cost the American taxpayer?
Mr. MANSON. I have no way of putting a price on something that
I dont regard as mismanagement.
Ms. EDWARDS. Well, the IGI mean whether you regard it that
way or not, I mean the Inspector General certainly regarded it as
mismanagement enough to question the integrity of dozens and
dozens of scientific-basedwhat we thought was scientific-based
research at the Department. And so I would urge you if you have
some other estimate of that cost that you would please submit for
our record because we would like to stack it up against the IGs
conclusions.
Mr. MANSON. I am not
Ms. EDWARDS. And with that, Imy time has expired. Thank
you.
Chairman BROUN. Thank you, Ms. Edwards.
I now recognize Dr. Benishek for five minutes.
Dr. BENISHEK. Thank you, Mr. Chairman.
Like all my other colleagues in this room today, I routinely hold
town hall meetings throughout my district, and a few months ago
I was approached by one of my constituents as I left the town hall
and he was holding a very large garbage bag and asked if I would
like to take a look. This was Mr. John Koske of Bessemer, Michigan. And Mr. Chairman, the bag held the carcass of a cat from his
farm that had been killed by a grey wolf. And he confronted me
with this picture that came out of it. The town hall was pretty
shocking. I would like to submit a copy of this photo for the record.
Chairman BROUN. So ordered.
[The information appears in Appendix II.]
Dr. BENISHEK. Unfortunately, farmers are not the onlypardon
me?
Chairman BROUN. So ordered.
Dr. BENISHEK. Thank you.
Unfortunately, farmers are not the only constituents with grey
wolf problems. I receive letters from families with family pets who
have been killed by wolves in their own backyards. Hunters in my
district feel threatened by the wolf as they have no recourse
against the animal. It worries me that many of my constituents
feel that they can no longer enjoy the outdoors due to an out-ofwhack wolf population.
The most recent study completed by the Michigan DNR early
this year indicated a minimum of 687 wolves in Northern Michigan. The goal for recovery in Michigan was 200 wolves. The Fish
and Wildlife Service, Michigan DNR, and my constituents all agree
that the wolf should be delisted in Michigan.
Mr. Frazer, can you speak to the science that impacted the Services decision to begin this process?
Dr. FRAZER. Wolves are originally listed under the Endangered
Species Act back in the 70s after they had been persecuted in the
lower 48 States by elements of the former Fish and Wildlife Service
atwhen times and societal values were different. At that point,
wolves existed in the lower 48 only in Northern Minnesota. We
have we believe successfully recovered wolves. We have a proposal
to delist wolves. In the western Great Lakes out right now we in-
71
tend and expect to make a final determination on that by the end
of this calendar year. We believe in the wolves in the western
Great Lakes have recovered and it is appropriate to have them
again managed by the States.
Dr. BENISHEK. Have there been any political issues that have impacted this process?
Dr. FRAZER. No, sir.
Dr. BENISHEK. Mr. Frazer, would your agency ever consider giving a partial or a state waiver to the ESA?
Dr. FRAZER. I am not sure what you mean by a state waiver.
Dr. BENISHEK. Well, to allow the States to manage the population withoutI mean at this point in time.
Dr. FRAZER. We work within the authorities we have under the
Act and there are certainly ways in which States can assume management lead for listed species. In the northern Rocky Mountains,
the States of Idaho and Montana had approved management plans
for wolves that allowed them under our experimental population
rules to essentially be the lead management agency
Dr. BENISHEK. Thank you.
Dr. FRAZER. to administer the Act.
Dr. BENISHEK. Mr. Manson, the political fight over the delta
smelt has been wrapped up in environmental terms but what about
the impact of these rules on your users? I mean how are California
farmers and other water users impacted by the restrictions that
have been contemplated?
Mr. MANSON. Well, the Court found in 2009 that there were severe economic and social dislocations as a result of the application
of the 2008 Biological Opinion. That included unemployment, it included a loss of crops, it included even things that go so far as foreclosures of homes in the Central Valley, so the impact has been
quite severe.
And I would like to say with respect to Judge Wanger, he is a
neutral Judge who has ruled against water users and ruled in
favor of environmental interests at times and ruled against environmental interests at other times and in favor of water users. And
I sat in the courtroom at each of the hearings at which the witnesses testified and as a former litigator and a former Judge myself, I was appalled at the testimony that was given and I believe
that his characterization of that testimony was correct.
Dr. BENISHEK. Thank you very much.
Mr. Chairman, I yield back my time.
Chairman BROUN. Thank you, Dr. Benishek.
I now recognize Mr. Miller for five minutes.
Mr. MILLER. Thank you, Mr. Chairman.
The reason we have these hearings is to build a factual record
for conductfor decisions before Congress, whether they be about
legislation or about funding. And the Chairman is correct in his
opening statementthere can be honest disagreements between
honest people but frequently the question comes down to what to
believe and that comes down to who to believe. So questions about
the credibility of the people who testify before us is entirely proper
just as it is in court. I have raised questions before about the financial interests that have been undisclosed by witnesses at other
hearings before this Subcommittee and others. There has been ve-
72
hement criticism of those questions by Members of the majority,
but we just heard today in the Chairmans opening statement questions about the credibility of environmentalists, of environmental
group because their income came in part from litigation that they
pursued over ESA decisions.
Again, going to credibility of witnesses or credibility of scientists,
the Chairman questioned in his opening statement or quoted some
District Court Judge in California I have never heard of as saying
that a scientists testimony was the testimony of a zealot, that the
Agency had acted in bad faith and attempted to mislead and deceive the Court. I dont know anything about that Judge at all. The
Chairmans testimony suggested that that must be the gospel truth
if it was a Judge saying it, but then he went on in questions and
said that Judges use their own political philosophies instead of
fact-finding. So it appears that it isI mean I think we should
properly consider the credibility of witnesses, whether they have an
interest, whether theyyou know, that is not to say that everybodyanybody who is consciously lying but where wewhat our financial interests are has a tendency to color what we think. And
that is something we should properly ask.
And also instances of conduct. Judge Manson, there have already
been questions about the Inspector Generals report. I think, Mr.
Chairman, that report should properly be part of the record today
and I would like to move it into evidence of the hearing as part of
the record.
Chairman BROUN. Without objection, so ordered.
[The information appears in Appendix II]
Mr. MILLER. Mr. Manson, Ms. Grifo said that most of the conduct
was by Julie McDonald. The findingsnot allegationsfindings of
the Inspector General are pretty striking, that she did in fact consciously edit findings of theabout theunder the ESA, that many
were set aside, two were apparently set aside by courts as arbitrary
and capricious, and that she had improperly disclosed confidential
information within the agency, outside of the agency, and on and
on, and found that you hadwhen you were interviewed, there
were noyou had no criticisms at all of her conduct. Do you still
have no criticisms at all of her conduct?
Mr. MANSON. I have no criticisms of her conduct.
Mr. MILLER. Have you kept in touch with her? Do you know
what she is doing now?
Mr. MANSON. I do.
Mr. MILLER. What is she doing now?
Mr. MANSON. She is a consultant.
Mr. MILLER. And do you continue to have professional relationships with her?
Mr. MANSON. From time to time.
Mr. MILLER. Has she done any work for Westlands?
Mr. MANSON. She has.
Mr. MILLER. Okay. Has she done any work recently for
Westlands?
Mr. MANSON. I dont know that.
Mr. MILLER. You are counsel for Westlands, right?
Mr. MANSON. Yes, but Ishe doesnt do legal consulting.
Mr. MILLER. Okay.
73
Mr. MANSON. I dont know the last time she did anything specifically for Westlands.
Mr. MILLER. All right. Can you tell me what the Center for Environmental Science Advocacy and Reliability is?
Mr. MANSON. Yes, that is a nonprofit organization that I began
while I was a law professor at McGeorge School of Law.
Mr. MILLER. Okay. And are you the Executive Director of that
now?
Mr. MANSON. I am.
Mr. MILLER. Are you compensated for that?
Mr. MANSON. No, I am not.
Mr. MILLER. You areokay. You act entirely as a volunteer in
that?
Mr. MANSON. Yes.
Mr. MILLER. All right. What is the funding for CESAR?
Mr. MANSON. It comes from donors of all sorts, and as I understand the law, the donors lists may remain confidential.
Mr. MILLER. All right.
Mr. Chairman, I will yield back my last 30 seconds.
Chairman BROUN. Okay. Thank you, Mr. Miller.
Thenow, I will yield the Chairman of the whole committee, Mr.
Ralph Hall. Chairman Hall, you are recognized for five minutes.
Chairman HALL. I will not use my five minutes.
I want to inquire of Mr. Vincent-Lang. The Fish and Wildlife
Services testimony mentions that the Policy Regarding the Role of
State Agencies in Endangered Species Act Activities. This policy
recognizes that States possess broad trustee authority over fish,
wildlife, plants, and their habitats within their border as well as
scientific data and valuable expertise on the status and the distribution of such species and habitats. Can you tell us a little about
your experience with this policy?
Mr. VINCENT-LANG. Well, the policy I think is well intentioned.
However, it has been
Chairman HALL. I dont know that I agree with you to start with,
but go ahead.
Mr. VINCENT-LANG. Well, I think it is well intentioned because
it is trying to define a role of States into the ESA process. However, it has been applied very inconsistently. Our experience in
Alaska is that we are being treated really no differently than any
other stakeholder in the ESA decision processes. We find this kind
of out of the compliance with the policy. This said, there is an effort
underway to reevaluate this policy and we welcome this and look
forward to having the value and roles of States recognizes in the
ESA processes in a formalized and consistent process for getting
the States management programs put into place.
I might add that States are well positioned to manage currently
healthy populations and the threats facing them. We have an excellent history and the tools necessary to manage species and the
threats facing them under our jurisdiction. This ranges from sustainable harvest programs to habitat protections for habitats that
are under threat. In Alaska we have an excellent history in our
short 50-year statehood no species have gone extinct underneath
our trust responsibilities.
74
Chairman HALL. I thank you. We read your testimony. I admired
it, thought it wasmaybe my offhand remark to you at the beginning I would have to withdraw that. I thank you.
I have to withdraw a lot of things I say nowadays.
Dr. Wilkins, your testimony indicates that the State efforts are
more effective and less costly than one-size-fits-all protections
under ESA. I surely agree with that. Would you like to explain that
for the record and what efforts are more effective and cost-efficient?
Mr. WILKINS. Certainly. It is good to see you, Representative
Hall.
We know the state agencies and state government, at least in my
experience and in the experience of several others has a set of
science resources that simply arent available to our federal agencies, not the least of which are the research extension and outreach
components of our State Land Grant University Systems, our ability for state government to mobilize forces and mobilize taskforces.
We saw an example of that in Texas just this last year. In fact, if
recovery goals were optionally deferred to the States, I am sure
that in many instances, we would find state-level recovery plans
that would be scientifically reliable, science-based, and actually deliver greater performance on the Act at a lesser cost than the way
recovery plans are administered at present, sir.
Chairman HALL. I thank you, sir.
And I yield back my time, Mr. Chairman, and I thank you. And
thank you for having the hearing.
Chairman BROUN. Thank you, Mr. Chairman.
I now recognize Mr. McNerney for five minutes.
Mr. MCNERNEY. Thank you, Mr. Chairman.
I want to thank the witnesses for your testimony this morning.
My first question goes to Honorable Manson. As you may know,
I represent a large portion of the San Joaquin Delta, which is the
most important estuary on the West Coast. A healthy Delta supports jobs for thousands of farmers and fisherman, small businessmen, and last week I met with senior officials from the Bay Delta
Conservation Plan, which included a representative from the
Westlands District. And I have to say what I heard was absolutely
unacceptable. I cannot accept a massive canal or tunnel that would
severely degrade the water quality for the entire Delta.
So in your opening statement you mentioned the constitutional
rights, including property rights, and I believe that we all agree
with that. So I have a simple question for you. Do you think it is
okay to use peoples lands, to steal their water, and destroy their
livelihoods without their consent?
Mr. MANSON. Well, certainly not.
Mr. MCNERNEY. Thank you.
Mr. MANSON. But I think the issue of Bay Delta is one that is
going to require a lot of cooperation from a lot of different entities.
The water users have funded a great deal of the planning and the
habitat conservation aspects of the Bay Delta plan and have not invaded and stealing anyones land or water.
Mr. MCNERNEY. So then by building massive tunnels in the
Delta where people who live there are adamantly opposed and are
not included in the discussion and have been excluded from the
75
process, is that okay? And that is what has happened. Those are
the facts.
Mr. MANSON. Well, I cant speak to the larger Bay Delta process.
There are many moving parts to it, many of which we dont participate in. We are looking for a stable, reliable water supply from the
Delta and along with that we have funded investigationscientific
investigations into conservation efforts in the Bay Delta region.
Mr. MCNERNEY. So you are looking for a stable water supply, for
example, with 15,000 CFS tunnel that would cause tens of millions
of dollars in agricultural losses in the Delta.
Mr. MANSON. There is no specific plan at this time.
Mr. MCNERNEY. That is one of the proposals that has been advocated by Westlands and do you think it is appropriate for the federal, state, and local agencies to sign agreements to fund the BDCP
without any input from the Delta residents, which has happened?
Mr. MANSON. Well, I dont know that that has happened, but I
will take your word for it.
Mr. MCNERNEY. Okay, thank you.
My next question is for Gary Frazer. The decline of the Delta
ecosystem has important human implications, as you may know.
Poor water quality is a severe threat to local farmers, and following
record water diversions in the 2008 and 2009 periods, the California Salmon Fishery collapsed costing thousands of jobs. The
Central Valley Project Improvement Act required the Interior to
double wild salmon populations by 2002, but unfortunately, we saw
the opposite happen; salmon declined. Doesnt the federal law require us to do more not less to protect the Delta ecosystem and the
jobs that it supports?
Dr. FRAZER. Congressman, I am afraid that I am not an expert
on that particular authority and that program, but I would be very
happy to get back to that specific question infor the record.
Mr. MCNERNEY. Okay, thank you.
Dr. Wilkins, I appreciate your thoughtful testimony actually. You
are actually proposing things that might make sense. Under scrutiny, I dont know yet. But you have been involved for a number
of years with the projects at Ft. Hood, Texas, which is a major
Army installation. This program has been reported as having
verybeen very successful in protecting habitat for the goldencheeked warblers while also allowing flexibility to the Army to conduct the exercises they require.
Mr. WILKINS. Yes.
Mr. MCNERNEY. I believe this is known as a recovery credit system. Can you talk a little bit about what you have been doing at
Ft. Hood and is that a model that could be used in other locations?
Mr. WILKINS. Yes, sir, I can. And it is a model that could be used
in other locations. The recovery credit system at Ft. Hood was a
proof of concept. Essentially, we demonstrated that we could get
flexibility for training on a major defense installation through those
actions that might disturb or take endangered species habitat on
the installation. There was contracts that were let with private
landowners who had habitat on their properties to maintain and
enhance that habitat to more than offset any degradation to habitat that might occur on a defense installation. Therefore, there was
a net benefit to recovery for that species in that exchange so that
76
we had a better set of progress towards the recovery efforts on private lands with private ranchers in Central Texas which, 20 years
ago, would have been unheard of, sir.
Mr. MCNERNEY. All right, thank you. I yield back.
Chairman BROUN. Thank you, Mr. McNerney.
The Chair now recognizes Ms. Adams for five minutes.
Mrs. ADAMS. Thank you, Mr. Chair.
Mr. Frazer, in the view of the Administration, does the USFWS
consider state-run wildlife management plans an important component of the ESA and species recovery?
Dr. FRAZER. We do. We view the State Fish and Wildlife Agencies as special partners in endangered species conservation while
before species are listed, they are the agencies that in almost all
cases have the management authority Fish and Wildlife implants.
We recognize the partnership as so important that under the leadership of former Director Sam Hamilton and current Director Dan
Ashe, we are participating in a specific task forceFish and Wildlife Service, National Marine Fisheries Service, and State Fish and
Wildlife agencies to grow and strengthen the collaborative partnership, and that can certainly include working together on recovery
planning, more importantly, on conservation of species before they
actually decline to the point
Mrs. ADAMS. So it is an important component?
Dr. FRAZER. Very important.
Mrs. ADAMS. If a State specifically incorporates hunting as a part
of their management plan, what is the Administrations position on
the use of hunting as a management tool for species recovery?
Dr. FRAZER. The Act lays out a very narrow exception for the
useor for the allowance of regulated taking in the concept of conservation. So to the extent that we have had case law on application of hunting or trapping programs, it is not one that gives us
a whole lot of latitude, but it is something we continue to explore
in appropriate circumstances.
Mrs. ADAMS. Can you please provide what scientific criteria
USFWS uses to determine the likelihood of a species being at risk
of extinction over a 50-year period or a 300-year period? Please provide the specific criteria to justify such lengthy timelines. Do you
have that with you?
Dr. FRAZER. We dont have specific criteria
Mrs. ADAMS. Can you provide that?
Dr. FRAZER. You are referring I believe to what and how we determine what is foreseeable future in determining whether a species is a threatened species?
Mrs. ADAMS. Do you have specific criteria for that?
Dr. FRAZER. No, we do not.
Mrs. ADAMS. So how do you determine?
Dr. FRAZER. On the basis of the best available scientific information at the time of the listing determination.
Mrs. ADAMS. Mr. Chair, I would like to have them for the record
bring forth that kind of information to the Committee.
Chairman BROUN. Ms. Adams, we are going to allow them to answer any written questionsor ask them to answer any written
questions, so you should be able to get that information.
77
Dr. FRAZER. Congresswoman, we certain lay that out in detail
every time we interpret that phrase in the context of a listing determination, so we could certainly
Mrs. ADAMS. So it is different for each time as you go along?
Dr. FRAZER. It is.
Mrs. ADAMS. Okay. USFWS recently settled lawsuits with litigants WildEarth Guardians and Centers for Biological Diversity to
make the decisions on hundreds of species within an agreed-upon
timeline. Can you please explain how this settlement comports
with the ESA as written given that it appears to remove any opportunity for public input or comment, including that of outside scientists and experts in the study of species under consideration?
Dr. FRAZER. The settlement simply resolved outstanding deadline
litigation that was facing the Service. We were not meeting the
deadlines that were laid out in the Act.
Mrs. ADAMS. So does it stopbecause it appears to stop any
input from the public, any comments from the public, experts?
Dr. FRAZER. Absolutely not. As I said in my written statement,
we will be making listing determinations through the rulemaking
process with public notice and comment on all of our proposals,
independent peer review. They will go through the standard process that has extensive opportunity to public engagement.
Mrs. ADAMS. Well, the two settlements recently in Alaska, the
USFWS agreed to dates after which the Service will no longer be
able to consider certain species toin Alaska to be candidate species. Were the State of Alaska and its wildlife biologists consulted
in the decision on how to prioritize these species for these settlements imposed deadlines?
Dr. FRAZER. I am notI dont know what circumstances you are
referring to.
Mrs. ADAMS. Okay. Well, we will have to submit that so you can
give us the answer to that.
Dr. FRAZER. We would be happy to respond for the record.
Mrs. ADAMS. Because I would like to know if the State was considered.
You state in your testimony that we are facing an extinction crisis, yet later on in your testimony you say that ESA is a success
because relatively few observed extinctions have occurred in the
United States during the last 4 decades. If that is the case, where
is the crisis you are talking about?
Dr. FRAZER. The Endangered Species Act was set up as a safety
net. We extend the provisions of the Act to
Mrs. ADAMS. I am asking where the crisis is.
Dr. FRAZER. It is on the number of species that are at risk of
being lost from our Nations biodiversity.
Mrs. ADAMS. Would you not agree that your statements kind of
contradict each other?
Dr. FRAZER. I dont believe that they do contradict.
Chairman BROUN. Thank you, Ms. Adams.
The Chair now recognizes Mr. Tonko for five minutes.
Mr. TONKO. Thank you, Chairman Broun.
Welcome to our panelists. I appreciate your input.
I have here an Anchorage Daily News article from May 25 of I
believe 2008 entitled, Email Reveals State Dispute over Polar
78
Bear Listing. And I ask that it be made part of the record, Mr.
Chair.
Mr. TONKO. Thank you.
The articles reports allegations that State scientists were not all
in agreement over then-Governor Palins decision to have the State
oppose listing the polar bear as endangered. This story is interesting to me because of a new policy of your new Governor, Governor Parnell. That policy states, Once a department position or
policy is established, employees must present or adhere to such a
position or policy when representing the Alaska Department of
Fish and Game whether directly or through use of its affiliation or
resources. In plain English, this indicates that once the State denies that a species is endangered, as the State has with the polar
bear and beluga whale, State employees including scientists cannot
be involved in any program or study that is built on an assumption
that they are endangered. All a scientist can do, in my opinion, is
repeat the States position regardless of facts.
I would like to enter, Mr. Chair, an Anchorage Daily News article from June 6 of this year on this policy at this point in the
record.
Mr. TONKO. Thank you.
This policy has had immediate consequences. The National Marine Fisheries Service, NMFS, has removed two Alaska State scientists from the Cook Inlet Beluga Whale Recovery Team because
the state policy directly conflicts with the purpose of the scientific
panel.
Now, Mr. Vincent-Lang, you have been quoted in the Alaska
press as supporting this new policy. Is that accurate? Do you support this policy?
Mr. VINCENT-LANG. Through the Chair, Mr. Tonko, yes, I do support the policy. I think the policy is meant to encourage frank and
open discussion regarding how the state position is set up, but once
we have that state position defined, I think it is our responsibility
then as an agency to have a single position so that the public isnt
confused about that position and we are clearly articulating it.
Nothing in that policy though prohibits an honest and open debate
about how we are going to reach a position.
Mr. TONKO. But I could lead to non-scientists making that policy
where there was suggestion that there was notthere wasnt scientific support for some of the administrative decisions.
Mr. VINCENT-LANG. Well, as you can probably understand even
in your own staff there is probably a wide range of views on any
single issue. I think it is the responsibility of the leadership of the
Department to take all those divergent views and come up with a
single position that best reflects our agencys position. We did that,
and in the case of the polar bear article, there was a single individual that had a different perspective than the entire leadership
of the Department.
Mr. TONKO. Um-hum.
79
Mr. VINCENT-LANG. In the case of the Cook and the beluga
whale, we asked our biologists to simply represent those views
when they were participating in the recovery panel. And we offered
them the opportunity if they didnt want to do that to participate
in that panel on their own separate from the Department.
Mr. TONKO. Now, Mr. Vincent-Lang, given that the policy requires state employees to articulate no position but the States position, could even tell us here today under oath if you disagreed
with that policy without potentially facing employment consequences back home?
Mr. VINCENT-LANG. If I disagreed with that policy?
Mr. TONKO. Um-hum.
Mr. VINCENT-LANG. Well, I dont. I agree with the policy so
Mr. TONKO. To Dr. Grifo, you have been following scientific integrity issues for many years and head up UCSs project on this subject. Do you have any comment that you would share with this
panel as tothat you would want to make about the State of Alaskas policy regarding its state scientists on scientific panels?
Dr. GRIFO. Yes, thank you. I mean I find this policy to be extremely troubling. I am not aware that when you become a scientist and gain state employment that you give up your First
Amendment rights. I mean I think the Federal Government and
the scientific integrity policies and the communication policies that
we are working on within those call for a personal views exception
where a scientist may stand up and be very clear that they are now
expressing their own personal view and not the view of the agency.
I also believe that it is incredibly important in these conversations
to capture dissenting opinions. Everyone isnt going to agree and I
think sometimes we think, oh, that confuses the public and it is
hard, but I think it is okay to have those dissenting opinions represented in the record.
Mr. TONKO. Um-hum. Now, with dissenting opinions
Chairman BROUN. The gentlemans time has expired.
Mr. TONKO. Okay.
Chairman BROUN. I thank the witnesses for you alls valuable
testimony and the Members for their questions.
The Members of the subcommittee may have additional questions
for the witnesses and you can ask those and Ms. Adams can, too.
And we ask all of you to please respond to those in writing. The
record will remain open for two weeks for additional comments
from Members.
The witnesses are excused and the hearing is now adjourned.
And thank you all.
[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.]
Appendix I:
ANSWERS
TO
POST-HEARING QUESTIONS
(81)
82
ANSWERS
TO
POST-HEARING QUESTIONS
Responses by Mr. Gary Frazer, Assistant Director,

Endangered Species, U.S. Fish and Wildlife Service
Questions submitted by Chairman Broun
Q1. How often is the precautionary principle the basis of a listing decision? If two
competing scientific views exist, does the U.S. Fish and Wildlife Service
(USFWS) determine that the best available science is the one that allows for
greater protection?
A1. We never use the precautionary principle as the basis of a listing decision unless ordered to do so by a court. In our view, the precautionary principle has no applicability on the preliminary question as to whether a species is in fact threatened
or endangered. Instead, as the Act requires, we make listing determinations according to the statutory definitions of threatened species and endangered species,
considering the factors and standards found in section 4(a)(1) and (b)(1). Likewise,
we also do not use section 4(b)(1)s requirement that listing determinations be based
solely on the best scientific and commercial data available as a justification for picking whichever of competing view allows for greater protection. There is often limited
or conflicting data available when we make decisions. We use our professional judgment and expertise to review the data to come to what we conclude is the most accurate, not necessarily the most protective, outcome.
Q2. USFWSs testimony alludes
cluded finding to a listing
What scientific information
determine that one species
from protection?
that when the Service makes a warranted, but prepetition, it is based on a prioritization of resources.
is used to make these prioritizations? How do you
deserves protection now, but another is precluded
A2. In determining whether a proposal will be developed for a species that warrants
listing under the ESA or if the development of that proposal is precluded by other
higher priority listing actions, the Service considers primarily two factors: (1) the
listing priority of the species based on the Services 1983 Endangered and Threatened Species Listing and Recovery Priority Guidelines (LPN guidelines) and (2)
budgetary and staff resources available to work on the action. The LPN guidelines
established a priority ranking system from one to 12 that takes into consideration
scientific information related to the taxonomic classification of a species, the magnitude of threats to the species, and the immediacy of threats to the species. Species
most at risk (LPN of 1) are considered by the Service to be the top priority species
for which a proposal to list will be developed once budgetary and staff resources are
available. Species for which a warranted-but-precluded determination has been
made are considered Candidate Species. The statuses of Candidate Species are reviewed on an annual basis and their priority rankings are updated as appropriate.
Q3. What science was used in the Services settlement agreement for the six year
work plan? Is it feasible to make an informed, scientific decision about the protection status of 250 species in six years?
A3. The scientific information used in developing the work plan was related to the
status of each of the Candidate Species and their priority ranking per the LPN
guidelines (discussed in response to question 2) when the species were initially determined to be candidates and as part of the annual review of Candidate Species.
The Service carefully considered the workload associated with making informed,
science-based decisions about the species outlined in the workplan, ensuring that robust peer review and public comment will take place before any decision is made.
We are confident that we can complete the workplan, assuming that we are able
to maintain the level of funding and staffing we have had available in recent years.
Q4. What does the term best available science mean to USFWS? Does the Service
ensure that all science used is peer-reviewed? Can the Service use gray data,
or unconfirmed information, as best available science if nothing else exists?
A4. The phrase best available science means a consideration of all relevant known
scientific and commercial information available when making a determination. The
Service considers a wide range of information in its decision-making process including peer-reviewed published literature, gray data, traditional ecological knowledge,
empirical information, and other types of information. It is the responsibility of the
Service to consider all of this information, assess its scientific reliability, and use
it appropriately and transparently in making its decision. The weight we give infor-
83
mation in making listing determinations takes into account indications of reliability,
such as peer review.
Q5. In your opinion, what percentage of listings is initiated from Federal scientists
and what percentage of listings are initiated due to petitions? What is the difference in the quality of the science generated by Federal scientists versus outside
groups?
A5. Over the last ten years the Endangered Species Listing Program has been driven, in a large part, by litigation and petitions. Greater than 90 percent of listing
determinations during that timeframe were initiated through the public petition
process. The quality of petitions varies greatlysome are wholly inadequate, while
some are every bit as impressive as the work conducted by our own biologists. However, the same data standards and rigorous process of evaluating the best scientific
information available are used when determining whether a species warrants listing
regardless of whether the action was initiated through a petition or by Service scientists.
Q6. Would the Service support reforming the petition process to prohibit the mass
listing petitions that have become commonplace in recent years? Has the Service
evaluated the quality of science used in those listing determinations?
A6. The Service does not have a position on reforming the petition process to prohibit mass listing petitions. The Service evaluates the science provided in large listing petitions, such as the one related to 404 aquatic species in the Southeastern
United States, as it would any other petition. In addition, the Service reviews the
information in its files about the petitioned species to complete its 90-day finding.
Ultimately, the Service makes individual findings for each species as it would with
individually-petitioned species.
The same data standards and rigorous process of evaluating the best scientific information available, conducting peer review, and soliciting public comment are used
when determining whether a species warrants listing regardless of whether the action was initiated through a petition or by Service scientists.
In the recent multi-district litigation, the Service and two of the most frequent
plaintiff groups (WildEarth Guardians and the Center for Biological Diversity) entered into two separate but complementary settlement agreements. One settlement
agreement limits the number of species that can be petitioned by the Guardians
during the six year workplan. The other settlement agreement provides for various
consequences that will be triggered if the Center exceeds a specified number of
deadline-related lawsuits in any given year. Together, these two plaintiffs have submitted the majority of petitions in recent years. As a result, we expect the number
of petitions will decrease notably. Furthermore, in accordance with the Presidents
Executive Order to review and evaluate government regulations and to provide for
a more balanced listing program that still allows for public participation, the Service
is considering a variety of ideas for increasing the effectiveness and efficiency of
many programs, including the petition process.
Q7. What percentage of the Services Endangered Species Act listing budget is expected to be used on completing the work required by the settlement agreements?
Will this preclude the Service from working on other species that might have a
higher priority?
A7. The multi-district settlement agreements allow some flexibility in our rulemaking commitments. The percentage of our budget that is expected to be used on
completing work required by the settlement agreements is contingent on our appropriation level. While our highest priority is to fulfill our commitments under these
settlement agreements, which will comprise the majority of our work, these commitments will not preclude us from addressing emergency listing actions that may arise
during that time. In addition, if we determine that compliance for the settlements
would prevent us from working on crucial, high-priority listing actions, we could
seek modification of the settlement, either with the agreement of the plaintiffs or
from the court.
Q8. What is the Service planning to do with any new listing petitions filed during
the process of complying with the settlement agreements? Would they be placed
on the candidate species list until the settlement work is completed?
A8. Because the multi-district litigation settlement agreements limit the number of
species that can be petitioned by or incentivizes restraint on the part of the plaintiffs during the six year workplan, as these plaintiffs represent a large contingent
of all our listing requests we expect the number of petitions will decrease notably.
We intend to complete 90-day findings for those petitions that we receive over the
84
course of the six year workplan. However, the degree to which we are able to make
additional 12-month findings on new petitions will depend on our progress in implementing our workplan and funding and staffing available. To the extent that we
identify additional species that warrant listing during the six year workplan, but
are not emergency listing actions, we anticipate that in most cases they would be
added to the candidate list at least until completion of the workplan.
Q9. USFWSs testimony highlights that the Endangered Species Act requires decisions to be made solely on the basis of the best scientific and commercial data
available under deadlines imposed by the Endangered Species Act. However,
these deadlines are policy choices, not scientific ones. How would science be impacted if your agency was given more time to review available data? What if it
had six months to make an initial determination instead of only 90 days?
A9. No matter the time frame allotted for an initial determination for a petition
finding, there is always the potential for workload to overwhelm the resources available. If resources were kept consistent with funding and staffing in recent years,
we have forecasted an ability to handle our existing workload (as outlined by the
six year workplan) within the existing statutory 90-days for initial determination on
petitions and 12-months for a species status review in a thorough and scientifically
defensible manner.
Q10. USFWSs testimony notes that the reason for the deferral of action related to
warranted but precluded listings was because of the need to allocate resources for other work. To what other work is the testimony referring? Did species protection suffer as a result of this diversion of resources?
A10. The other work to which the testimony is referring is work that was courtordered or related to other settlement agreements, in addition to work on other
higher priority candidate species with lower LPNs. These activities are not a result
of a diversion of resources, but rather a direction of limited resources to the highest
priority activities. Furthermore, the high volume of deadline-related litigation required the Service to work on initial 90-day and 12-month petition findings to the
exclusion of listing determinations for existing candidate species. These factors were
a motivation behind the multi-district litigation settlement agreements, which outline a plan for making listing decisions on the current list of candidates, and will
also reduce new deadline litigation cases and the number of new petitions. These
factors were also the motivation for the petition subcap language the Administration
requested and the Congress included in the Interior appropriations bill.
Q11. How much in legal fees does the U.S. government expect to pay in the two recent settlements with WildEarth Guardians and the Center for Biological Diversity? How is this amount determined?
A11. The amount of any fees awards is subject to ongoing and confidential settlement negotiations between the Department of Justice (DOJ) and both plaintiffs. The
two settlement agreements resolved thirteen separate lawsuits that were consolidated in these MDL proceedings, and the parties are currently attempting to settle
the fees-related claims for all of these lawsuits. Because the parties fees-related negotiations are complex and ongoing, it is not possible to estimate the amount of any
fees awarded at this time. If the parties are unable to agree on the amount of any
fees awards, the court will determine the appropriate amount. As you are aware,
in such cases, the prevailing party is entitled to recover its additional costs for litigating the amount of the award, should the parties be unable to reach agreement.
Q12. The USFWS has a practice of denying ESA enhancement of survival permits
for the importation of endangered species trophies, regardless of the fact that
the Service has admitted that hunting of certain foreign species and importation by U.S. hunters of the trophies of those species enhances the survival of
those species. [68 Fed.Reg. 49512 (Aug. 18, 2003)]
How does the Service scientifically justify the denial of such permits, and how
does the Service reconcile the denial with its statutory obligation to encourage
foreign governments to conserve their species? [Endangered Species Act, 16
U.S.C. Section 1537]
A12. The Service believes that a properly managed, scientifically based hunting program can provide benefits to certain species in the wild. The Service is supportive
of hunting programs that stimulate stronger conservation for both game and nongame species. Consequently, we issue hundreds of import permits every year for trophies of species that are listed as threatened. However, not all hunting programs
are identical, nor do they all provide a benefit to the hunted species, particularly
endangered species.
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All applications received by the Service are reviewed on a case-by-case basis using
the best available scientific and commercial information. Requests to import endangered species, whether a hunting trophy or scientific specimen, are evaluated based
on the issuance criteria established in our regulations (50 CFR 17.22(a)(2)) to determine whether the importation of the specimen would enhance the propagation or
survival of the species. For hunting trophies, we are particularly interested in determining if the species is being managed according to sound scientific principles and
professionally accepted management practices, including whether legal hunting is
effectively controlled at sustainable levels and illegal hunting is being effectively
controlled or eliminated, and whether the hunting program provides a benefit to the
species. Benefits can be directby generating funds that support the management
programas well as indirect, such as by providing economic benefits to local communities so that they support the protection and maintenance of the species.
To date, with the exception of bontebok, which are successfully managed on South
African ranches and game reserves, we have not been able to find that the killing
of an animal listed as an endangered species through sport hunting provides sufficient enhancement to overcome the loss of the animal from a population that, by
definition, is currently in danger of extinction. However, species with a listing status
of threatened would not have so high a threshold for enhancement, thus increasing
the likelihood we could allow the import of trophies obtained through well-managed
sport hunting program.
The Services statutory obligation to encourage foreign governments to conserve
their species is accomplished through various measures and is not limited to authorizing the import of hunting trophies. For example, the Service may provide grants
that support the development of management programs for species, including antipoaching measures, which may eventually lead to the improvement of the status of
the species and the possibility that we could then allow the import of trophies. Permit denials often result in consultations between the Service and the foreign government to provide them guidance on where improvements are needed to allow trophies
to be imported into the United States. This generally means achieving a consistent
level of protection and management across countries and across species, often within
the same geographic region (e.g., southern Africa).
Q13. Listing Decisions and Recovery Plans are required to undergo peer review. Are
Consultations and Biological Opinions also required to undergo peer review?
If they are not required to undergo peer review, should assessments and
BiOps that have such a significant impact on land-use be required to undergo
peer review?
If they are required to undergo peer review, is that peer review conducted
by an external body, or by other agency staff?
If they sometimes undergo peer review, how does the agency determine when
to seek peer review, and how does the agency determine whether the peer
review will be internal or external?
A13. The Service generally does not incorporate independent peer review in section
7 activities, including biological opinions. All Service biological opinions undergo internal management review before they are distributed to the action agency. The extent of internal review varies and depends largely on the degree of complexity or
controversy of the proposed Federal action as well as the extent of any scientific uncertainty. Biological opinions that conclude the proposed action is likely to jeopardize the continued existence of any listed species must be reviewed and approved
by a Regional Director. Biological opinions that conclude the proposed action is not
likely to jeopardize the continued existence of any listed species must be reviewed
and approved by Field Office supervisors.
The statute and our implementing regulations focus our efforts on providing timely consultation and biological opinions to Federal action agencies to help them satisfy their obligations under the ESA without unnecessarily delaying their decisions.
The statute specifies that consultation is to be concluded within 90 days of initiation, and that the Federal agencies (the action agency and the Service) may extend
this timeline by mutual agreement. However, the statute further specifies that when
an applicant is involved, the Federal agencies may not extend the consultation for
more than 60 days without the consent of the applicant. The implementing regulations further specify that the Service is to deliver its biological opinion within 45
days of the conclusion of consultation, which means that consultations are expected
to be completed in 135 days, unless extended. Such a timeline does not lend itself
to conducting external peer reviews.
In unusual situations, the Service and the Federal action agency may choose to
conduct a peer review of a biological opinion. The decision to undertake such a re-
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view is generally based on the complexity and level of controversy as well as the
extent of any scientific uncertainty regarding the effects of the action and is only
implemented with the mutual agreement of the Service and the Federal action
agency. The decision to undertake such a review requires the Federal action agency
to accommodate the additional time commitment and to handle the expense and logistics of the peer review.
Q14. What efforts will you and your agency undertake to investigate the actions of
USFWS employee Jennifer Norris, accused of providing false or misleading testimony before Judge Wanger? How long is this investigation expected to take?
Will outside individuals be brought in to undertake this investigation or will
it only be conducted by agency personnel? If so, please list the individuals that
will be involved in the investigation along with their affiliations and titles. Will
the investigation results be made public?
A14. We firmly believe that wise decisions about the future of the Bay Delta must
be guided by the best available science. The Service stands behind the consistent
and thorough work that our scientists have done on the Bay Delta over many years.
Their expertise and professionalism remain vital to the success of our efforts to meet
the co-equal goals of improving water reliability and restoring the health of the Bay
Delta.
A14. We also believe that, when questions arise regarding the integrity of scientific
work, it is important to resolve them swiftly, independently, and decisively. The
Service has taken the comments by Judge Wanger very seriously and treated as allegations of scientific misconduct under the Department of the Interior Manual 305
DM 3 Integrity of Scientific and Scholarly Activities. The Service retained a contractor, Atkins North America, to engage a panel of independent reviewers who are
external to both the Service and Bureau of Reclamation to evaluate the testimony
and declarations made to the court by Dr. Norris. The panel was asked to determine
whether the testimony and declarations made to the court were appropriately based
upon the extensive scientific record on this issue. The panel produced a report which
has been evaluated by the Services Scientific Integrity Officer. The panel found
that, although certain of the judges questions could have been answered more clearly, Dr. Norris committed no wrongdoing or misconduct, and her testimony fell within the well-established norms and standards of acceptable scientific conduct. The
Services Scientific Integrity Officer, therefore, found that there is no indication that
Dr. Norris violated the Departments Scientific and Scholarly Integrity Policy. The
same is true with respect to a Bureau of Reclamation scientist, Frederick Feyrer,
who was also criticized by Judge Wanger.
Questions submitted by Representative Sandy Adams
Q1. The two recent ESA Settlements with WildEarth Guardians and Center for Biological Diversity commit the USFWS to various deadlines over the next six years
for the 251 species currently on the candidate species list and other species. For
each of these species, the Service has agreed either to (1) decide a listing is not
warranted or (2) propose a rule to list the species. [CBD Settlement, para. B.3;
WEG Settlement, para. 2] The settlement agreements therefore prohibit the Service from making warranted but precluded findings for any of the existing candidate species and other species subject to the settlements.
How can the Service deprive itself of the authority Congress gave it to make
a warranted but precluded finding, including for the 251 species currently
on the candidate species list?
How can the Service know now, scientifically speaking, that at the time it
reaches each of the settlement-imposed deadlines, it will not be faced with
species with higher listing priorities that would necessitate a continued warranted but precluded finding for the species that are the subject of the settlement agreements?
A1. The Service has already determined that the 251 species on the candidate list,
many of which have been candidates for a decade or more, warrant a listing proposal under the ESA. However, until such time as we propose listing each of these
species, we will be re-certifying our warranted but precluded finding for each relevant species each year in the Candidate Notice of Review. The six year work plan
and the negotiated settlement agreements will reduce the amount of deadline litigation and the number of petitions filed. This will allow the Service to reclaim a greater measure of control over our listing activities, to resolve our backlog of listing actions in a timely and cost-effective manner, and to focus our limited resources on
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the species most in need of ESA protection. With relatively few exceptions, the settlement agreements allow the Service to use our biologically based listing priorities
to schedule our work, so that the highest priority species will proceed to listing determinations first. We also purposely reserved the discretion and capability to handle emergency listing needs during the course of this workplan.
Questions submitted by Representative Randy Neugebauer
Q1. What percentage of the dunes sagebrush lizards potential habitat has the
USFWS studied in the process of analyzing Federal protection status of the species? How can you be sure of the science behind the lizards status without studying the entire land area that will be affected by the regulation?
A1. The best available scientific information at the time of our listing proposal indicated that the lizard is found only in the shinnery oak sand dunes in southeastern
New Mexico and west Texas. While a majority of the lizards habitat has been surveyed, portions of suitable habitat on private lands have not been surveyed due to
access issues. Note that the best-available-science standard of the ESA requires us
to make determinations in the absence of perfect information. The best available
science indicates that the shinnery oak sand dunes habitat has suffered significant
losses over recent years, which contributed to our decision to propose the lizard for
listing.
On December 5, 2011, the Service published in the Federal Register a six month
extension of the final determination of whether to provide protection under the ESA
for the lizard. The Service is taking this action in order to solicit additional scientific
information and public comment before making any final listing determinations regarding the agencys proposal. Publication of this announcement will reopen the
comment period on the proposed rule to list the species (published on December 14,
2010) for 45 days. In addition to the original comment period associated with the
publication of the proposed rule, we held two public meetings in April 2011 and reopened the comment period to accept additional public comments. That comment period closed on May 9, 2011.
Public comments received since the publication of the proposed rule have expressed concerns regarding the sufficiency and accuracy of the data related to the
lizards status and trends in New Mexico and Texas. The Service has received new
survey information for the lizard in New Mexico and Texas and an unsolicited peer
review study on our proposed rule. During the 45-day comment period, the Service
is soliciting input from concerned governmental agencies, the scientific community,
industry, or any other interested party concerning the proposed rule in light of the
concerns raised to date and the additional information the Service has received.
Q2. Do you have baseline population estimates for the dunes sagebrush lizard? Just
because a lizard is no longer found at a specific site where it once lived, does
that mean that that particular lizard has died, or could it have migrated to a
different location? What does the USFWS consider to be a viable population
number for the lizard, and how do you come to that conclusion?
A2. Populations of lizards vary over time due to a number of factors such as the
abundance of invertebrates (prey), drought, or the availability of mates. It is true
that the absence of lizards does not mean that lizards have died, but it does mean
that they are no longer found at a given site, or are at such low numbers that they
are undetected. The Sias and Snell study, which determined that lizards were less
abundant adjacent to oil and gas development, was completed in areas where lizards
were still present. Areas within oil fields where lizards were not present were excluded from the study. It is reasonable to expect that lizards will be found in areas
where habitat remains, and not be found in areas where suitable habitat no longer
exists. The proposed rule does not define a viable population for the lizard, but
makes a direct connection to the availability of habitat and the lizards persistence.
As previously noted, comments received since the publication of the proposed rule
have expressed concerns regarding the sufficiency and accuracy of the data related
to the lizards status and trends in New Mexico and Texas. Therefore, in consideration of the disagreements surrounding the lizards status, the Service is extending
the final determination for six months in order to solicit scientific information that
will help to clarify these issues. The Service has also opened another 45-day comment period on the proposed rule that began on December 5, 2011. The Service welcomes any scientific information available that is relevant to the question.
Q3. The petition filed by the Center for Biological Diversity and the Chihuahuan
Desert Conservation Alliance in May 2002 to list the sand dune lizard as threatened or endangered relied upon studies performed by the University of New
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Mexicos Department of Biology in the mid-1990s. That petition clearly ignored
parts of the studies that conflict with the petitions goals. For example, the population of the lizard in areas where oil wells were present was found to have increased by a factor of 2.4 from 1996 to 1997, compared to an increase by a factor
of 1.6 where wells were absent. The reports also conceded that the lizard continues to live in areas where there have been oil fields in existence for over 40
years. If we are talking about threats to the lizard, how can you justify moving
forward with this listing in the face of scientific evidence that contradicts the
popular view that human activity such as oil drilling is responsible for killing
off the species? Do you have a response to the data and studies referenced above?
A3. As mentioned previously, populations of lizards vary over time due to a number
of factors such as the abundance of invertebrates (prey), drought, or the availability
of mates. For this reason, the authors (Sias and Snell) compared surveys each year
independently. There were periods during the study where lizards were more abundant at a developed site, but throughout the five year study, the researchers found
statistically significant differences between the developed and undeveloped sites.
The statistical evidence allowed the authors to conclude the relationship between
the abundance of lizards at developed and undeveloped sites could not be explained
by chance.
As previously noted, comments received since the publication of the proposed rule
have expressed concerns regarding the sufficiency and accuracy of the data related
to the lizards status and trends in New Mexico and Texas. Therefore, in consideration of the disagreements surrounding the lizards status, the Service is extending
the final determination for 6 months in order to solicit scientific information that
will help to clarify these issues. The Service has also opened another 45-day comment period on the proposed rule that began on December 5, 2011. The Service welcomes any scientific information available that is relevant to the question.
Q4. Do you have baseline population estimates for the lesser prairie chicken? What
percentage of the lesser prairie chickens potential habitat has USFWS studied?
A4. Scientifically sound historical baseline population estimates are not available.
Instead the Service has relied on the best scientific knowledge of species experts as
reported in the scientific literature. From these accounts we can determine, with
some confidence, the historically occupied range and estimated abundance of lesser
prairie-chickens. Knowledgeable sources considered the lesser prairie-chicken to be
abundant to common in the late 1800s. One source estimated that as many as two
million lesser prairie-chickens may have existed in Texas alone at that time. By the
1930s, the species had begun to disappear from areas where it had been considered
abundantpopulations were nearly extirpated from Colorado, Kansas, and New
Mexico, and were markedly reduced in Oklahoma and Texas. In the mid-1960s, the
total rangewide population was estimated to be between 36,000 to 43,000 individuals.
The fish and game agencies in each of the five States where the lesser prairiechicken occurs conduct surveys for the lesser prairie-chicken. In all five States, survey routes are established throughout much if not all of the known range of the lesser prairie-chicken. While the actual amount of known range sampled by each route
is small, the surveys provide an index of the status of the lesser prairie-chicken, by
State, over the entire range. The methodology is useful in documenting long-term
trends but is limited in its ability to reliably estimate population numbers. Recently,
the States received funding to implement aerial surveys for lesser prairie-chickens,
which may provide more reliable indicators of population status, but these surveys
have not yet been completed rangewide.
Q5. How effective have volunteer conservation agreements with private land owners
and industries been in protecting the habitats of the dunes sagebrush lizard and
the lesser prairie chicken? Does USFWS take these options into account when
conducting scientific studies of mitigation strategies?
A5. Conservation agreements are in place in three of the five lesser prairie-chicken
States. In Texas, there are currently 17 enrolled ranches in a Candidate Conservation Agreement with Assurances (CCAA), representing 199,781 acres in 8 counties.
In New Mexico, there are currently 34 oil-gas companies enrolled in the Candidate
Conservation Agreements (CCA) for a total of 574,763 mineral acres enrolled. In addition, 34 New Mexico ranchers have enrolled in the CCA and CCAA, representing
1,353,924 enrolled acres. An approved CCAA has been developed with a single landowner in the State of Kansas. Oklahoma, under the leadership of the Oklahoma Department of Wildlife Conservation, is currently developing a CCAA. As in all species, the Service does consider the agreements when conducting research, or imple-
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menting conservation measures for the lesser prairie-chicken or dunes sagebrush
lizard.
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Responses by The Honorable Craig Manson,
General Counsel, Westlands Water District
Questions submitted by Chairman Paul Broun
Q1. In your professional opinion, what percentage of listings are science-based and
what percentage of listings are policy or politically driven?
A1. In my experience, each listing decision has a varying degree of science supporting that decision. Generally, it is often the perceived sufficiency, or lack thereof,
of objective scientific support for a particular decision that leads to controversy. In
addition, each listing decision requires the decision-maker to:
tak[e] into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such
species, whether by predator control, protection of habitat and food supply, or
other conservation practices, within any area under its jurisdiction; or on the
high seas.
16 U.S.C. 1533(b)(1)(A).
Q2. There seems to be a concern that a balance needs to be struck when designating
critical habitat for protected species. What type of science is used to determine
the critical habitat?
A2. Under the Endangered Species Act, the best scientific and commercial data
available is required to be used for determining critical habitat. 16 U.S.C.
1536(a)(2). As I indicated in my testimony before this Committee, section 4(b)(2)
requires that the Secretary in designating critical habitat:
tak[e] into consideration the economic impact, the impact on national security,
and any other relevant impact, of specifying any particular area as critical
habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based on the
best scientific and commercial data available, that the failure to designate such
area as critical habitat will result in the extinction of the species concerned.
16 U.S.C 1533(b)(2).
Congress provided this power of exclusion to allow the Secretary to make informed decisions regarding the comparative value of designating critical habitat
with the consequences of doing so, precisely to ensure a balance was struck between
a wide variety of policy values and species protection.
Q2. Would ending the outside petition process better allow the U.S. Fish and Wildlife Service to focus its attention on species that need the most help instead of
species that may be more charismatic than others?
A2. No, I believe that when used appropriately, the outside petition process is an
important tool in protecting endangered species. In the past, Congress amended the
ESA as a reaction to the failure of the Service to promptly make key decisions by
including mandatory time limits for making decisions. In some instances, the Service has been unable, or unwilling, to meet the time limits that are in current law.
Congress may choose to evaluate the merits or adequacy of the existing time limits
contained within the ESA.
Q4. Given your unique experience dealing with all sides of the Endangered Species
Act, how would you improve the Act?
A4. As an initial matter, any changes to the ESA should be in relatively small bitesize pieces in order to make them manageable. Moreover, as I mentioned in my testimony before this Committee, we need to return to the notion that science can tell
us what is, while policy determines what ought to be done. To do that, the listing
decisions should be de-coupled from the automatic, discretion-less application of regulation. That would require congressional action. Additionally, the quality of science
would be vastly improved and court litigation sharply reduced if the Secretary was
required to make listing determinations by formal-rulemaking under the Administrative Procedure Act.
Q5. Please define and explain Consultations and Biological Opinions, or BiOps?
How do Consultations and BiOps impact proposed federal projects and activities? Can they have a significant impact?
A5. Section 7(a)(2) of the ESA requires Federal agencies to ensure, in consultation
with, and with the guidance of either the Secretary of the Interior or the Secretary
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of Commerce, based on the best scientific and commercial data available, that
their proposed actions will not be likely to jeopardize the continued existence of any
[listed] species or result in the destruction or adverse modification of the critical
habitat of such species. 16 U.S.C. 1536(a)(2) (2010).
In general, once an action agency has made the determination that a proposed
action may effect a listed species or its critical habitat, the formal consultation requirement is triggered, and the federal action agency provides a biological assessment to the consulting agency (U.S. Fish and Wildlife (FWS) or National Marine
Fisheries Service (NMFS)) and then looks to the consulting agency for advice and
guidance. Section 7(b)(3)(A) of the ESA requires that the consulting agency provide
the action agency with a written statement . . . detailing how the agency action affects the species or its critical habitat. If jeopardy or adverse modification is found,
the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) and can be taken by the Federal agency
or applicant in implementing the agency action. 16 U.S. C. 1536(b)(3)(A). Once
the action agency receives the written statement, commonly referred to as a biological opinion, consultation is complete and, it remains the responsibility of each Federal agency to insure that it is in compliance with section 7(a)(2) and that it has
established an administrative record for a given activity which demonstrates such
compliance. Interagency Cooperation Endangered Species Act of 1973, 51 Fed.
Reg. 19,926, 19,956 (June, 1986).
As seen in the instance of a small fish in the Sacramento-San Joaquin Delta in
California, the delta smelt, a biological opinion can have a significant impact on the
human environment. On December 15, 2008, FWS issued and Reclamation conditionally accepted a biological opinion concerning the effects of the operations of the
Central Valley Project and the State Water Project (collectively the Projects ) on
the delta smelt. The biological opinion called for a drastic reduction in the amount
of water that the Projects could deliver to its customers. In May 2010, a Federal
District Court in California found that implementation of the 2008 biological opinion
caused rampant unemployment, increased poverty and hunger, and damage to
prime agricultural land. The Consolidated Smelt Cases, 717 F.Supp.2d 1021 (E.D.
Cal. 2010).
Q6. How does science inform a Consultation or BiOp? Does the agency conduct new
science, or simply review existing literature?
A6. The ESA exists at the confluence of science, law, and policy. It is not a purely
scientific decision scheme. The ESA requires science-informed decisions, not merely
scientific decisions. Science can tell us what is, while policy determines what ought
to be done.
Under the ESA, a federal agencys action must be based on the best available
scientific and commercial data available. 16 U.S.C. 1536(a)(2).
Questions submitted by Ranking Member Donna Edwards
Q1. You stated at the hearing that, I found it curious that the Inspector General
of the Department of the Interior took two years after I had left the Department
to come ask me anything about any of those cases. I found it interesting that
during the time that any of these things were happening, no one approached me
and asked me any questions about any of those things. And so it made me suspect of their motives and calls into questionin my mind at leasttheir integrity.
In response to a later question you clarified that you were not suggesting that the
IG lacked integrity, but that you meant to challenge the integrity of those who
brought into question some of those activities during the time that I was there and
the time that I subsequently was a law professor for 4 years.
On November 22, 2005, Secretary Norton announced that you had submitted your
resignation as Assistant Secretary for Fish and Wildlife and Parks. According to a
Department of Interior release, that resignation was to be effective December 31,
2005. Staff have checked with the Department of Interior Inspector Generals office.
They indicate that they received allegations about the misconduct of your Deputy,
Julie MacDonald, on April 11, 2006. You were interviewed in the course of that investigation within a few months of its opening. In short, it was a matter of months
after you left your position before you were swept up into the first investigation of
Julie MacDonald.
Do you wish to clarify your claims to the Subcommittee regarding how long it took
for the Interior staff to complain to the IG about misconduct and for IG investigators
to approach you regarding Ms. MacDonalds activities?
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A1. No.
Q2. In your oral testimony you stated, Now, I want to talk about the incident with
Gary Frazer. Gary was the one who brought to my attention a flaw in a rule
that we were issuing, and I appreciated that very much . . . Your comments
then went on to explain why you ordered an erroneous rule to be published in
the Federal Register. However, you did not address the other element of this incident that had been referenced in my opening statement. You did not discuss
your role in having Gary Frazer sent to USGS as a liaison, removing him from
his post at Fish and Wildlife where he had been trying to stop some of Ms. MacDonalds more egregious conduct. The Inspector Generals report documents this
incident with some care.
Did Julie MacDonald ever communicate to you that Gary Frazer (either by
name or title) was trying to interfere or oppose some of her efforts at the Department?
Did Julie MacDonald ever communicate with you in any way about having
Frazer removed from his post at the Fish and Wildlife Service?
If you appreciated Mr. Frazers bringing Ms. MacDonalds error to your attention very much, why did you participate in removing Gary Frazer from the
Fish and Wildlife Service?
Do you believe that a high-profile removal and reassignment of a Fish and
Wildlife staffer widely known to have been a roadblock to Ms. MacDonalds
conduct on ESA issues would have no impact on staff perceptions of the probability of retaliation if they complain about Ms. MacDonalds misconduct so
long as you were the Assistant Secretary?
A2. Mr. Frazer was reassigned, not removed. It is my understanding that by entering the Senior Executive Service Mr. Frazer decided he wanted to be within a class
of employees that could be appropriately reassigned based upon the needs of the
agency, subject to certain procedural requirements.
Ms. MacDonald, as Deputy Assistant Secretary for Fish, Wildlife, and Parks, had
no line authority to make personnel decisions over Fish and Wildlife Service employees.
Q3. Your testimony regarding internal complaints at Interior and the Inspector Generals investigation is somewhat ambiguous. You seem to suggest that no employee or staff member of the Department of the Interior ever approached you
to bring any complaints regarding Ms. MacDonalds conduct on Endangered
Species Act issues to your attention. Did no one ever complain about Ms. MacDonalds conduct?
Did you ever receive complaints or information that would lead you to believe
the Pacific Legal Foundation or any other private party had received internal
Departmental documents from Ms. MacDonald that would be considered predecisional or deliberative?
Did you ever approve Ms. MacDonald providing internal Departmental documents that would be considered deliberative or pre-decisional to an outside
party?
Did you ever provide internal Departmental documents that would be considered deliberative or pre-decisional to an outside party?
Did you ever receive complaints or information about Ms. MacDonalds personal conduct, often described as abusive, with other members of the staff?
Did you ever receive complaints or information about Ms. MacDonalds communicating with science staff in the field challenging their findings or ordering them to change their findings?
A3. I do not recall receiving complaints regarding Ms. MacDonalds conduct, except
that she set high expectations of staff. The remainder of the question is vague and
ambiguous in that no definition of predecisional or deliberative is set forth. I
would note that the Assistant Secretary for Fish and Wildlife and Parks is authorized to exercise all of the authority of the Secretary . . . 209 DM 6 [DOI Departmental Manual, Part 209, section 6]. Thus, it was up to me to determine what was
predecisional or deliberative. Furthermore, to the extent that these terms,
predecisional or deliberative, are intended by the questioner to refer to documents covered under what is known as Exemption 5 of the Freedom of Information Act, 5 USC 552 (b) (5), it must be understood that Exemption 5 exempts documents from mandatory disclosure and does not prevent an authorized official to dis-
93
close such documents in an exercise of the officials discretion. This interpretation
is fully compatible with President Obamas 2009 Memorandum for Heads of Agencies, Subject: Freedom of Information Act.
Q4. Between the time Ms. MacDonald was hired by you in 2002 and the time you
left the Department you promoted herultimately she became Deputy Assistant
Secretaryand participated in awarding her at least one significant bonus. The
Departments Inspector General documented Ms. MacDonalds misconduct in
painful detail based on multiple witnesses in three reports. How is it possible
that you could not have known of any element of the misconduct by the Deputy
Assistant Secretarya member of your staff who was personally close to you?
A4. While there have been many statements made concerning Ms. MacDonald, it
is important to note that Ms. MacDonald brought a defamation action against the
Center for Biological Diversity (CBD) regarding certain allegations it made concerning her conduct at Interior. It is my understanding that CBD settled this lawsuit and posted an apology to Ms. MacDonald on its website.
Q5. I asked you about the costs of setting right the consequences of mismanagement
that occurred during your time at the Department and due to subsequent activity
by Ms. MacDonald. You seemed to suggest you did not agree with the Inspector
Generals conclusions about mismanagement or the IG conclusions regarding the
minimal costs of that mismanagement, which they place in the hundreds of
thousands of dollarsat a minimum. Please explain why you do not accept
those conclusions and why you believe the cost estimate is inaccurate.
A5. I have no way of knowing what the purported costs are and have no personal
insight into the costs after I left the Department of the Interior.
Questions submitted by Representative Brad Miller
Q1. In your testimony to the Committee you admitted that Ms. MacDonald has done
work as a consultant to Westlands. Please provide to the Committee information
regarding when Ms. MacDonald has worked for Westlands, what issues she has
worked on and the amount of remuneration that Westlands has provided for
those services. Response: Ms. MacDonald does not have a consulting contract
with Westlands. It is my understanding that Westlands has a consulting contract with National Environmental Strategies (NES). It is also my understanding that Ms. MacDonald has worked with NES.
Q2. Did Ms. MacDonald provide any assistance to you in preparing your written testimony for the Subcommittees hearing? Did she compose any or all of it in draft
or final form; edit the testimony, review the testimony, provide comment on the
testimony or any other service associated with the testimony? Response: No.
Q3. You indicated to the Committee that you established the Center for Environmental Science Advocacy and Reliability. Can you please specify when you established the Center? Response: I established CESAR in 2008 while I was a law
professor at University of the Pacific, McGeorge School of Law. It was intended
to be an ancillary resource for my scholarly research.
Q4. Has Ms. MacDonald done any work for CESAR, either paid or unpaid? If the
answer is yes, please indicate the time frame of her work and the issues or products she has provided to CESAR. Response: CESAR benefits from a wide range
of volunteer work from a number of members of the community. Ms. MacDonald
has not been paid for any work associated with CESAR.
Q5. The Pacific Legal Foundation (PLF) is identified as representing CESAR in at
least one legal action that the staff could find. Please provide a record of the
history of the Pacific Legal Foundation acting to represent or support the work
of CESAR. Identify all cases, either current or past, in which PLF has provided
representational services to CESAR.
A15. PLF represented CESAR concerning a petition before the U.S. Fish and Wildlife Service under 16 U.S.C. 1533(b)(3)(D), In the Matter of the Petition to Rescind
Critical Habitat for the Perdido Key beach mouse under the Endangered Species Act.
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Responses by Mr. Douglas Vincent-Lang,
Senior Biologist, Alaska Department of Fish and Game
Q1. Your testimony highlighted the role states can and should have in Endangered
Species Act (ESA) decisions. Please provide some examples of how a greater state
role could impact the ESA process and properly protect endangered species without burdening American jobs?
A1. States have the primary trustee responsibility for fish and wildlife and their
habitats. As such, states hold significant expertise on their trust resources and their
conservation. Given this, states are in an excellent position to inform all ESA process decisions, from listing decisions to biological opinions to recovery planning to
delisting/uplisting/down-listing decisions.
Recognizing this, when passing the Endangered Species Act Congress clearly identified a unique role for states in all Endangered Species Act decisions. This role is
contained in Section 4(i) of the Act. This section clearly grants states a place at the
table in all Endangered Species Act decisions. Congress intent is recognized by the
Services in their Interagency cooperative policy regarding the role of State agencies
in Endangered Species Act initiatives, which was recently re-affirmed by the Services.
Despite these recognitions, states are not being given equal deference in the implementation of the ESA. Instead, the Services are increasingly using their deference to discount valid questions raised by states on ESA decisions. They are also
using their deference as a basis of their defense of flawed science. It is imperative
that states be granted equal deference during all Endangered Species Act decisions.
These actions would conserve and recover listed species without burdening American jobs.
Q1. Alaska is viewed as a state with unique economic development challenges. How
will the broad scale of the recently imposed polar bear habitat protection area
hurt the economy of your state and put jobs at risk? In addition, how will these
protections impact our nations ability to reduce the use of imported oil from
volatile regions of the world?
A2. The United States Fish and Wildlife Services (the Service) designation of
187,157 square miles of polar bear critical habitat, an area larger than California,
the third largest state in the United States, is unprecedented. Nine percent of the
final critical habitat designation covers lands owned by the State of Alaska. The
States legal title and regulatory interests extend to its offshore submerged lands
and waters, which include significant portions of the designated polar bear critical
habitat. The area designated includes the largest areas of potential oil and gas deposits in the United States and are on economic importance to the State as well as
of strategic importance to the Nation. The designation puts the area under federal
control and opens all permit decisions to potential litigation and delay.
The designation of polar bear critical habitat interferes with Alaskas management of its own oil and gas resource lease sales and the development of mitigation
measures for those lease sales. Specific activities affected by the polar bear critical
habitat designation include oil and gas leasing in and adjacent to Alaska including
the proposed Beaufort Sea Area-wide 2009 Oil and Gas Lease Sale and the North
Slope Area-wide 2008 Oil and Gas Lease Sale. These dates refer to the original date
of the final best interest finding for the area-wide sales issued by the Director of
the Division of Oil and Gas. These are geographic and site-specific examples of oil
and gas leasing in the Beaufort Sea and North Slope planning areas that will be
affected by the Services polar bear critical habitat designation, as well as more generally areas that are the subject of the Alaska Department of Natural Resources
current five-year plan for area-wide oil and gas lease sales for the Beaufort Sea and
North Slope planning areas scheduled for 2011, 2012, 2013, 2014, and 2015. Additionally, State activities concerning existing pipelines (including the TransAlaska
Pipeline); roads; other industry and local infrastructure projects are similarly affected by the polar bear critical habitat designation. The States own oil and gas
leasing activities, together with the federal offshore oil and gas leasing activities,
are important to the States operations, management, and incomeboth for wildlife
management (including the polar bear) and other purposes-due to the royalty and
tax revenue the activities generate and because throughput from the TransAlaska
Pipeline system provides income and economic benefit to the State of Alaska and
its citizens as well as being strategically important to the nation.
95
The Services continuous imposition of overlapping critical habitat designations on
the map of Alaska makes it increasingly difficult for Alaskas native entities, economic interests, and the State itself to delineate permissible activities and act in
the best interests of Alaska. Of notable concern is the contiguous band of critical
habitat along the entire Alaskan coastline from the Canadian border to Kuskokwim
Bay, which includes an area from 03 miles of state waters. This inserts a federal
overlay that will require mitigation and conservation protections and conditions developed and approved by the federal government in State waters. This could significantly impact oil and gas development within the area of critical habitat designation.
The polar bear critical habitat designation is especially detrimental to Alaskas interests because the designation imposes additional injury through ESA requirements, especially in the Section 7 consultation process, that constrain the destruction or adverse modification of critical habitat. These are requirements that have
no analog under the MMPA or pre-ESA listing programs to which polar bear management and conservation may have been subject, and are in addition to the requirement in the Section 7 consultation process for federal agencies to ensure that
their actions are not likely to jeopardize the continued existence of the polar bear.
The critical habitat considerations in the Section 7 consultation process will hinder
and increase costs associated with projects of significant potential economic value
to the State of Alaska and the nation.
Q3. The U.S. Fish and Wildlife Service (USFWS) testimony states that the ESA has
been a success? Do you agree or disagree? Why?
A3. Let there be no doubt that we should everything in our power to prevent the
extinction of species facing imminent and addressable threats in the near future. It
would be irresponsible to not take the necessary actions to prevent extinction.
While the extinction a small number of species have been prevented by their listing, the ACT has a dismal record in terms of preventing species extinction and recovering species to the point that they can be removed from protection under the
Act. Less than 1% of the species listed have been removed as recovered. Given this
record, it is hard to agree that the Act has been a success.
We believe reform is needed to improve the Act. Specifically, we recommend the
following:
Make designation of critical habitat discretionary.
Only allow a species to be listed if the factor can be addressed by the ESA
Define foreseeable future and acceptable level of risk.
Provide specific guidance on when and how the Services can designate Distinct
Population Segments and/or subspecies.
Relax requirement for 90-day findings and 12 month status reviews.
Define recovery as the number necessary to remove extinction, not to fully recover the species and its habitat.
Disallow recovery goals aimed at ecosystem restorationkeep the goals focused
on species recovery.
Questions submitted by Ranking Member Paul Tonko,
Q1. Mr. Vincent-Lang, in response to a question from Mr. Tonko, you testified that:
[I]n the case of the Polar bear article, there was a single individual that had a
different perspective than the entire leadership of the department.
However, the attached email indicates that at least three individuals from within
the Division of Wildlife Conservation agreed with the conclusions of the USGS studies relied upon by the Federal Government to list the Polar bear as threatened. This
email also seems to suggest that these individuals were the primary individuals
within your department responsible for reviewing the science behind the USGS studies.
Can you please explain this apparent discrepancy with your sworn testimony in
front of the Committee? In addition, can you also please confirm that due to the State
of Alaskas communications policy, the three individuals noted in this email would
be prohibited, under threat of dismissal, from publically airing their findings that
the science behind listing the Polar bear was sound.
A1. I misunderstood the question being asked, my apologies. Mr. Tonko is correct
that three individuals performed cursory reviews of the USGS reports. They did not,
however, as acknowledged in the aforementioned email perform in-depth reviews
of the reports.
96
Upon further discussion with these staff, it became evident that because the reviews were not in-depth, their reviews may have not been through enough to assess
methods and analytical approached in the depth required to ascertain the validity
of the primary conclusions and inferences made in the reports.
To provide additional insights into the reports, other professional scientists in the
Department were asked to perform in-depth reviews. These reviews identified significant methodology and analytical issues that raised concern over the validity of
the report conclusions. The final comments represented the combined review of the
Department. As such it represents the combined expertise of the entire Department,
rather than that of a select few individuals.
Individuals are free to provide all opinions in the development of a state position.
However, once that position is developed and finalized, all employees are expected
to portray the state position when acting in their official capacity. Talking with
other state and federal agencies, this is commonplace practice.
I note that the Service in their Court filings on litigation over this listing decision
acknowledged many of the science issues raised by the state.
Questions submitted by Representative Sandy Adams
Q1. The USFWS recently settled lawsuits with the Wild Earth Guardians and the
Center for Biological Diversity. In the two settlements, the Service agreed to
dates after which the Service will no longer be able to consider certain species
in Alaska to be candidate species. Were the State of Alaska and its wildlife biologists consulted in the decision on how to prioritize these species for these settlement imposed deadlines?
A1. No, states, including Alaska, were excluded from the settlement talks with Wild
Earth Guardians and the Center for Biological Diversity on the candidate species
list. States had much to inform these discussions in terms of ongoing work and conservation efforts. This knowledge was not brought forward to inform these talks because states were prohibited from entering into the talks.
Specifically for Alaska, we were planning to conduct research on Kittlitzs
murrellets that would have provided key information to inform a status review on
this species. However, because the State was excluded from these talks we were not
able to bring this information into the talks. The settlement agreement scheduled
this review for 2013. As a result, the State has cancelled its research as the data
analysis would not be complete before the start of the status review. If we had been
involved in the settlement talks, this information could have informed the talks.
It is imperative that states be granted automatic intervener status for all lawsuit
involving species within their jurisdictions.
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Responses by Dr. Neal Wilkins, Director,
Texas A&M Institute of Renewable Natural Resources
Q1. You stated in your testimony that although science and management approaches
have improved over the last 20 years, the Endangered Species Act (ESA) has not
been updated to reflect these improvements. What improvements have been made
in the past two decades that the ESA in its current format hinders from use?
A1. The science of wildlife conservation and management has advanced considerably over the past two decades. One of the most notable science advancements is
the ability to develop accurate models for predicting species occurrence, abundance
and changes over time. This is aided considerably by the technological progress in
remote sensing and image processing. Models and our ability to use them with computer processing are more site-specific, accurate and meaningful than could have
been imagined 20 years ago. So, for many species we can predict the overall outcome
of a combination of habitat change and human activities. These modeling approaches have stimulated real advancements in habitat conservation planningbut
they have also allowed us to more easily grasp the relationships between incentives
and trade-offs that can benefit species conservation. The potential applications of
wildlife science & management are now at the point where we can more readily account for trade-offs and efficiently apply market-based approaches for achieving species recovery. But we first need some changes in policy.
The incidental take prohibition of ESA (Section 9)which is the tip of the spear
for implementing the Act on private landsis focused on the take of individuals,
and this focus on protecting individuals is often at the expense of conserving an entire population. This is an antiquated approach. Section 9 of the ESA could be revised to give more specific guidance for allowing broad exemptions from incidental
take prohibition. Modifications to the ESA could allow exemptions for combined actions that demonstrate a net benefit to a species population, even if this might
cause harm to one or more individual organisms. This action alone would further
stimulate the application of science and technology to achieve recovery benefit for
many of those species that are currently listed under ESA.
Q2. You also stated that pre-existing information is viewed as the best available
science, even if new information is collected. Is there a provision in the ESA that
creates a hurdle for new scientific evidence being weighed as much as the existing information? How are competing scientific views resolved?
A2. By the ESA not requiring independent peer review for establishing the best
available science individual service personnel are allowed to make their own determinations. As a result, when those same personnel are challenged for prior decisions, they have no well-established procedure for inclusion of new information. In
other words, by not requiring a standardized independent peer review process, the
ESA indirectly creates a hurdle for new scientific evidence being consistently
weighed as much as existing information. In the end, competing scientific views are
resolved through collecting information to test both views. A standardized peer-review process would guard against selective use of information.
Q3. Your testimony indicated that there is a disincentive for private landowners to
provide access to scientists. The rationale is that if a species were found, their
land would be severely impacted. Would a requirement that all such populations
census be anonymous help better identify populations that have been overlooked?
A3. Yes. Like any other information, we have found that private landowners are
more likely to allow access for scientific work if they have the option to have their
identity and location held confidential. Until the disincentive of the incidental take
prohibition of Section 9 is resolved, it makes sense for individual states to allow information collected for scientific purposes to be shielded from public information requests.
Q4. What is your view of the quality of scientific work submitted through listing petitions filed by outside groups? How does the quality of science submitted by outside groups seeking a listing compare to that developed by the U.S. Fish and
Wildlife Service (USFWS) or state agencies?
A4. My views are based on the recent trend of activist organizations preparing most
listing petitions. Overall, there seems to be a pattern of selective use of information
in building a case for listing a species in many of the petitions prepared by outside
groups. In some cases, the reliability of information is not revealedand in other
cases it is only opinion and anecdotal observations that are cited as scientific au-
99
thority. Given the glut of listing petitions, the Service is simply not able to do any
of their own work in checking the scientific validity of many of these petitions.
I cannot comment on the comparison of outside petitions to those prepared by the
Service or state agencies as recently there are very few proposals from the Service
that have not been petitioned by an outside group. However, the oversight of professional wildlife biologistsi.e., those Certified by The Wildlife Societywould provide an additional safeguard on the reliability and completeness of science included
in listing petition process. The Service, and most state agencies, do have professional wildlife biologists on staff or available to them.
Q5. Would mandatory outside peer review help improve the quality of the science
used by federal agencies? Would it be practical? What types of scientific work
should be peer reviewed?
A5. Yes. In my view, mandatory peer review should be used to review the science
used in listing, de-listing, and other critical ESA decisions. Yes it would be practicalespecially if the Service sought the aid of The Wildlife Society or other professional organizations in the design and implementation of the process.
Q6. In your professional opinion, what percentage of listings are science-based and
what percentage of listings are policy or politically driven?
A6. I am sorry, but I am not able to directly speculate on the percentages. However,
as there certainly are some politically driven listingsand many of these are of
great impactthere should be some attention spent on minimizing these. And they
impact not only local economies but they serve to discredit the ESA and its purpose.
Q7. There seems to be a concern that a balance needs to be struck when designating
critical habitat for protected species. What type of science is used to determine
the critical habitat?
A7. I do not have enough specific experience with designations of critical habitat
to have recognized any pattern regarding the use of science.
Q8. Would you support ending the use of outside listing petitions? Would this benefit
the ESA listing process?
A8. Outside listing petitions probably serves a purpose for engaging the public in
the ESA. However, the artificial deadlines for decisions on outside petitions should
be removed in favor of a science-based priority process. This would probably serve
to greatly reduce the number of outside petitions, as it appears that the recent flood
of outside petitions is contingent upon the ability to file lawsuits in response to the
Services inability to meet a deadline for considering the petition.
Q9. The USFWS testimony states that the ESA has been a success? Do you agree
or disagree? Why?
A9. I disagree. The ESA was intended to promote the recovery of imperiled species.
As I recently reviewed in detail 1, the listing of a species under ESA has not only
proved to be largely ineffective, but it is often detrimental to the very species that
is listed. The ESA has been successful in creating public dialogue on endangered
species; it has perhaps been successful in creating a safety net that has kept a few
species from becoming further imperiled. But it has not been successful in meeting
its primary goals. We can do better.
Q10. How does science inform a Consultation or BiOp? Does the USFWS conduct
new science, or simply review existing literature? If USFWS conducts new
science, is it always peer-reviewed? If it is not, do you think it should be? Is
this practicable?
A10. In my experience, the Service rarely conducts new science for informing a Biological Opinion. The research and monitoring for a BiOp is routinely conducted by
a proponent in order to gain information to support their Biological Assessment.
Also, the Service may require specific research and monitoring as part of the reasonable and prudent measures of the Biological Opinion A Biological Assessment
informs the Services Biological Opinion (BA)and new science is often presented
in a BA, but it is mostly conducted by consultants or university researchers.
The science used to support a Biological Opinion should come mostly from the
peer-reviewed body of science, but it may not be practical to require that the sitespecific research and monitoring done to support a specific federal action be subject
1 Wilkins, N. 2011. Improving the ESAs Performance on Private Lands in Rebuilding the
Ark: New Perspectives on Endangered Species Act Reform, ed. J.H. Adler. The AEI Press, Washington, D.C., 5680.
100
to an independent peer-review process prior to its use for decision-making on all
projects.
Again, it is the use and interpretation of science in status reviews, recovery plans,
and listing decisions that is most important. For federal projects requiring a Biological Opinion, it may not be practical to require peer review in all cases. That said,
for projects for which the decisions might have a significant impacteither economically or ecologicallyit may be important to subject the Biological Opinion to an
outside peer review process.
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Responses by Mr. Jonathan Adler, Professor,
Case Western Reserve University School of Law
Questions submitted by Chairman Paul Broun,
Q1. Your testimony indicated that charismatic species are more likely to be listed
and receive federal funding. Since the U.S. Fish and Wildlife Service (USFWS)
has been inundated by hundreds of listing petitions filed by outside groups,
would one solution be to either give priority to agency originated listed actions
or to simply ban outside petitions all together?
A1. There are good reasons to allow outside groups and individuals to petition the
FWS to list species as threatened or endangered. Among other things, researchers
and conservationists who work in the field are more likely to discover or become
aware of endangered and threatened species than government officials working
within the agency. The petitioning process allows the FWS to take advantage of the
dispersed ecological knowledge held by those engaged in species-related research or
conservation efforts around the country.
The problem is that some groups and individuals have an incentive to list species
for reasons other than environmental conservation. Because the listing of a species
can trigger the imposition of regulatory controls under the ESA, there is an incentive for those opposed to land or resource development to seek to list species that
can be used as a proxy for their anti-development goals. It also creates an incentive
to skew the relevant science in favor of a listing decision, and increases conflict over
listing decisions. Just as anti-development groups make seek to see species listed,
pro-development groups have an incentive to oppose species listings. This places
pressure on the listing decision, and often leads to litigationlitigation that is a further drain on FWS resources, which in turn causes further delays in future listing
decisions.
The best way to address this problem is to insulate the listing process from the
regulatory process. Decoupling the listing decision from the ESAs regulatory provisions would eliminate the incentive to use species listings as a weapon in fights over
land and resource development, lessen the pressure on listing decisions, reduce interest-group involvement in (and litigation over) listing decisions, and make it easier
for the FWS to focus on the underlying scientific questions.
Q2. Is it fair to say that the Endangered Species Act has been used to promote policy
goals separate from species preservation? If so, what can Congress do to prevent
this?
A2. Unfortunately, some activist groups have used the Endangered Species Act as
a weapon against resource use and development. Specifically, some environmentalist
groups sue to force the imposition of greater regulatory restrictions on land-use and
other economic activities, preventing the FWS and other government agencies from
basing their enforcement and implementation decisions on ecological concerns. The
best way to address this would be to disarm the various regulatory triggers within
the act through which outside groups can use federal courts to direct ESA implementation and enforcement. This can be done by decoupling the listing decision
from the imposition of specific, mandatory regulatory measures and granting the
FWS greater flexibility in developing recovery plans and greater ability to rely upon
non-regulatory conservation strategies.
Q3. The USFWS testimony states that the ESA has been a success? Do you agree
or disagree? Why?
A3. I do not believe the ESA has been a success. The express goal of the act is to
recover species listed as threatened or endangered, and yet as of October 2011
fewer than 50 of the approximately 2,000 listed species have been delisted, and only
22 of these were classified as recoveries by the FWS. If anything, this overstates
the Acts relative success, as the recovery of many of these species had little if anything to do with the Act. For example, several bird species listed as recoveries were
helped by the banning of widespread DDT use, but this was done in 1972, one year
before the ESA was enacted, let alone enforced.
As I discuss in my book, Rebuilding the Ark, the ESA may be credited with preventing the extinction of some species, but it is also responsible for creating incentives against species and habitat conservation on private land. This is significant
because most listed species rely upon private land for some or all of their habitat.
Further, as one recent study concluded, those species listed as endangered are less
likely to be improving than those listed as threatened, despite the increased regulatory protection the former receive. While there is evidence that spending on re-
102
covery plans can help listed species, there is little evidence the Acts current regulatory structure does much to help those species in greatest need.
Q4. Your work on the ESA highlights some of the perverse incentives created by the
restrictions that accompany a listing decision. Please describe ways to create
positive incentives for species protection?
A4. Before the ESA, or any other statute, can create effective positive incentives for
species conservation, the perverse incentives which discourage species conservation
must be reduced, if not eliminated. The most effective ways to do this would be to
reduce the economic consequences of listing decisions and habitat determinations for
private landowners. This can be accomplished by decoupling the listing decision
from the imposition of land-use restrictions under Section 9 and the application of
Section 7 consultation requirements to programs that impose limitations on private
land use. It can also be accomplished by creating greater flexibility within Section
9, so as to allow the FWS the ability to adopt other conservation measures in lieu
of land-use controls, or by providing compensation to landowners for the imposition
of land-use restrictions. In terms of developing effective incentive programs, I would
recommend looking at the success of voluntary, incentive-based programs such as
Partners for Wildlife and the North American Waterfowl Management Plan, as
these programs have managed to conserve substantial acreage in a cost-effective
manner.
Appendix II
ADDITIONAL MATERIALS SUBMITTED
(103)
FOR THE
RECORD
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SUBMITTED
STATEMENT FOR THE RECORD BY
REPRESENTATIVE RANDY NEUGEBAUER
Thank you, Chairman Broun, for holding this important hearing to examine the
science behind the Endangered Species Act and the protection of certain species
under that law. Such listings have profound impacts on jobs, economic development,
and industrial capabilities across the country. Two species that are being considered
for an endangered listing, the dunes sagebrush lizard and the lesser prairie chicken
(LPC), have habitats in my district. If protected under the Endangered Species Act,
my district and other surrounding areas will see oil production, wind development,
agricultural production, and transportation improvements severely limited. Decisions of this magnitude require the utmost consideration and sound scientific evidence, and I am not convinced the proper care has been taken to guarantee this.
In a May joint hearing before the House Agriculture Committee and Natural Resources Committee, I asked then acting-Director Gould of the U.S. Fish & Wildlife
Service (USFWS) about how the science behind the potential listing of the dunes
sagebrush lizard. In response, he said, I am not familiar with. the science behind
the lizard you are referring to. To begin with, this lack of familiarity with a major
listing is troubling. I am hoping that Mr. Frazer can provide greater insight into
this particular case because I am concerned that the Fish & Wildlife Service is not
making decisions based on accurate science, but rather to avoid lawsuits from environmental organizations. According to an Associated Press article from April 28,
2011, Neither environmentalists nor federal wildlife managers have population estimates for the lizard but they point to distribution studies that show about a quarter of sites where the lizard was once found are no longer occupied. This lack of
data and seemingly assumptive science is troublesome considering that roughly 20
percent of Americas domestic oil production occurs in this region where the lizard
may live. It is no small matter to list a species that could potentially halt that production, which would kill thousands of jobs and make our country even more dependent on foreign oil.
This issue is also important in the potential decision to classify the lesser prairie
chicken an endangered. The projected habitat regions of the LPC in Texas alone
contribute an estimated $28 billion to our nations economy and accounted for
350,000 jobs in 2009. Industries that would be affected by LPC being listed include
wind energy, agriculture, oil and gas, and transportation. In an effort to prevent
habitat loss for the LPC, Texas agreed to a Candidate Conservation Agreement with
Assurances (CCAA) with USFWS in 2006. The CCAA encourages beneficial habitat
management activities among private landowners on a voluntary basis. These efforts should be taken into consideration and should be studied as potential mitigation techniques for habitat loss. In the state of Oklahoma, about $23.5 million has
already been spent in the last five years to protect the lesser prairie chicken. These
efforts should not be overlooked.
In general, I am concerned that we are disrupting enormous amounts of economic
productivity for species we may know too little about. Attempting to list species
without knowing even its very basic biological characteristics is absolutely unacceptable. This lack of sound evidence could result in killing thousands of jobs and billions of dollars in economic activity before anyone can even prove that harm is truly
being done. I believe the standard of science here may not be good enough. If the
best available data doesnt actually include population statistics or does not tell
us if the numbers have increased or declined in the past ten years, I do not see how
this best available data is sufficient to justify making such momentous decisions.
105
PHOTOGRAPH
SUBMITTED FOR THE RECORD BY
REPRESENTATIVE DAN BENISHEK
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UNITED STATES DEPARTMENT OF THE INTERIOR, OFFICE OF INSPECTOR GENERALS
REPORT OF INVESTIGATION: THE ENDANGERED SPECIES ACT AND THE CONFLICT
BETWEEN SCIENCE AND POLICY,
SUBMITTED FOR THE RECORD BY REPRESENTATIVE BRAD MILLER
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The full version of the report can be found at: http://www.doioig.gov/
112
ARTICLE
ENTITLED, EMAIL REVEALS STATE DISPUTE OVER

SUBMITTED FOR THE RECORD BY REPRESENTATIVE
POLAR BEAR LISTING,

PAUL TONKO
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ARTICLE ENTITLED, STATE POLICY LEADS BELUGA TEAM TO REMOVE ALASKA
SCIENTISTS, SUBMITTED FOR THE RECORD BY REPRESENTATIVE PAUL TONKO
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THE DELTA SMELT CASES, SAN LUIS & DELTA-MENDOTA WATER AUTHORITY,
KENNETH LEE SALAZAR, ET AL., 09CV407, REPORTERS TRANSCRIPT
OF PROCEEDINGS, SEPTEMBER 16, 2011
ET AL. V.
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House Hearing, 112TH Congress - The Endangered Species Act: Reviewing The Nexus of Science and Policy

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THE ENDANGERED SPECIES ACT:

REVIEWING THE NEXUS

SUBCOMMITTEE ON INVESTIGATIONS AND

COMMITTEE ON SCIENCE, SPACE, AND

Serial No. 11244

U.S. GOVERNMENT PRINTING OFFICE

For sale by the Superintendent of Documents, U.S. Government Printing Office

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

HON. PAUL C. BROUN, Georgia, Chair

Witness List .............................................................................................................

Appendix I: Answers to Post-Hearing Questions

Mr. Jonathan Adler, Professor, Case Western Reserve University School of

Appendix II: Additional Material for the Record

THE ENDANGERED SPECIES ACT:

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

The Endangered Species Act: Reviewing the

1713 of P.L. 11210.

14 specific listing petitions must be resolved by September 30, 2013

CHAIRMAN PAUL BROUN

RANKING MEMBER DONNA EDWARDS

Chairman BROUN. Thank you, Ms. Edwards.

Dr. FRAZER. Good morning, Chairman Broun, Ranking Member

Mr. MANSON. Thank you, Mr. Chairman.

THE HONORABLE CRAIG MANSON, GENERAL COUNSEL,

Chairman Broun, Congresswoman Edwards, and Members of the Subcommittee:

Chairman BROUN. Thank you, Judge.

Mr. VINCENT-LANG. Good morning, Mr. Chair, Ms. Edwards,

Mr. WILKINS. Mr. Chairman, Members of the Committee, thank

Dr. GRIFO. Chairman Broun, Ranking Member Edwards, and

Responses by Mr. Gary Frazer, Assistant Director,

ADDITIONAL MATERIALS SUBMITTED

STATEMENT FOR THE RECORD BY

REPRESENTATIVE RANDY NEUGEBAUER

SUBMITTED FOR THE RECORD BY

REPRESENTATIVE DAN BENISHEK

The full version of the report can be found at: http://www.doioig.gov/

ENTITLED, EMAIL REVEALS STATE DISPUTE OVER

POLAR BEAR LISTING,

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