[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
ENDANGERED SPECIES ACT
IMPLEMENTATION:
SCIENCE OR POLITICS?
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
Wednesday, May 9, 2007
__________
Serial No. 110-24
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Ken Calvert, California
Frank Pallone, Jr., New Jersey Chris Cannon, Utah
Donna M. Christensen, Virgin Thomas G. Tancredo, Colorado
Islands Jeff Flake, Arizona
Grace F. Napolitano, California Stevan Pearce, New Mexico
Rush D. Holt, New Jersey Henry E. Brown, Jr., South
Raul M. Grijalva, Arizona Carolina
Madeleine Z. Bordallo, Guam Luis G. Fortuno, Puerto Rico
Jim Costa, California Cathy McMorris Rodgers, Washington
Dan Boren, Oklahoma Bobby Jindal, Louisiana
John P. Sarbanes, Maryland Louie Gohmert, Texas
George Miller, California Tom Cole, Oklahoma
Edward J. Markey, Massachusetts Rob Bishop, Utah
Peter A. DeFazio, Oregon Bill Shuster, Pennsylvania
Maurice D. Hinchey, New York Dean Heller, Nevada
Patrick J. Kennedy, Rhode Island Bill Sali, Idaho
Ron Kind, Wisconsin Doug Lamborn, Colorado
Lois Capps, California Vacancy
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South
Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Jeffrey P. Petrich, Chief Counsel
Lloyd Jones, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Wednesday, May 9, 2007........................... 1
Statement of Members:
DeFazio, Hon. Peter A., a Representative in Congress from the
State of Oregon............................................ 4
The Wildlife Society Final TWS Position
Statement on the Endangered Species Act submitted for
the record............................................. 151
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 5
Letter to the U.S. Fish and Wildlife Service submitted
for the record......................................... 116
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 1
Prepared statement of.................................... 2
Sali, Hon. Bill, a Representative in Congress from the State
of Idaho................................................... 3
Saxton, Hon. Jim, a Representative in Congress from the State
of New Jersey, Prepared statement of....................... 140
Letter to DOI Secretary Kempthorne submitted for the
record................................................. 141
Young, Hon. Don, a Representative in Congress from the State
of Alaska, Prepared statement of........................... 142
Statement of Witnesses:
Clark, Jamie Rappaport, Executive Vice President, Defenders
of Wildlife................................................ 13
Prepared statement of.................................... 14
Response to questions submitted for the record........... 18
DellaSala, Dominick A., Ph.D., Chief Scientist and Executive
Director, National Center for Conservation Science & Policy 154
Prepared statement of.................................... 156
Response to questions submitted for the record........... 160
Grifo, Dr. Francesca T., Ph.D., Senior Scientist and Director
of Scientific Integrity Program, Union of Concerned
Scientists................................................. 23
Prepared statement of.................................... 25
Horn, William P., Attorney, Birch, Horton, Bittner & Cherot,
on behalf of the U.S. Sportsmen's Alliance................. 179
Prepared statement of.................................... 181
Response to questions submitted for the record........... 183
Rodd, Judith Schoyer, Director, Friends of Blackwater........ 163
Prepared statement of.................................... 164
Response to questions submitted for the record........... 171
Ruch, Jeff, Executive Director, Public Employees for
Environmental Responsibility (PEER)........................ 32
Prepared statement of.................................... 34
Response to questions submitted for the record........... 45
Scarlett, Hon. P. Lynn, Deputy Secretary, U.S. Department of
the Interior............................................... 6
Prepared statement of.................................... 8
Young, John A., Biologist (Retired), National Oceanic and
Atmospheric Administration Fisheries and U.S. Fish and
Wildlife Service........................................... 173
Prepared statement of.................................... 176
Response to questions submitted for the record........... 178
Additional materials supplied:
Hallock, Robert J., Statement and chronology submitted for
the record................................................. 143
Northern Spotted Owl Recovery Plan Options, October 18, 2006,
submitted for the record by The Honorable Jay Inslee....... 189
Olson, Gail S., Ph.D., Letter submitted for the record by The
Honorable Jay Inslee....................................... 187
OVERSIGHT HEARING ON ``ENDANGERED SPECIES ACT IMPLEMENTATION: SCIENCE
OR POLITICS?''
----------
Wednesday, May 9, 2007
U.S. House of Representatives
Committee on Natural Resources
Washington, D.C.
----------
The Committee met, pursuant to call, at 10:03 a.m. in Room
1324, Longworth House Office Building. Hon. Nick J. Rahall, II
[Chairman of the Committee] presiding.
Present: Representatives Rahall, Young, Christensen,
Napolitano, Holt, Grijalva, Costa, Sarbanes, Miller, Markey,
DeFazio, Kind, Capps, Inslee, Baca, Sandlin, Gilchrest, Pearce,
Brown, Heller, Sali, and Lamborn.
STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF WEST VIRGINIA
The Chairman. The Committee on Natural Resources will come
to order, please.
Last week, Julie MacDonald resigned her position as Deputy
Assistant Secretary for Fish, Wildlife and Parks at the
Department of the Interior, ending what many staff felt was a
reign of terror. Unfortunately, when she packed up she left
behind a lot of baggage, including an agency that seems bent on
abdicating its mandated responsibilities under the Endangered
Species Act to protect God's creatures for future generations.
From changes in regulations to poorly developed legal
reviews that have left the agency sorely vulnerable to attack
in the courts, the evidence of a systematic effort to undermine
the law and species protection is quite clear. This is an
agency that seems focused on one goal--weakening the law by
administrative fiat and it is doing much of that work in the
shadows, shrouded from public view.
For example, we know that the Department has been
contemplating for some time a major rewrite of regulations to
implement that law. We know this because a copy of draft
regulations was leaked to the media. As Chairman of the
Committee with oversight of this matter, I asked for copies of
the same draft regulations, but received no response from the
Department; that is, until Monday, two days before this
hearing.
That response from Director Dale Hall said, and I quote,
``The Department has made no final decision on whether to
propose any regulatory changes to the ESA.'' Yet, the letter
includes a chart prepared, ironically, by the Center for
Biological Diversity with the Fish and Wildlife Service's
editorial notes describing their ``current draft proposal.''
While Fish and Wildlife has gone to extreme lengths to keep
these documents away from the Committee, special interest
groups challenging ESA decisions have found it easy enough to
get their hands on a version of them.
Just last week, on May 1, 2007, the American Forest
Resource Council had to amend a complaint it filed in court on
March 7, 2007, citing a regulation that is not even on the
books but is rumored to be under consideration--apparently, top
secret consideration--at the Interior Department. Just how the
timber industry was able to procure the draft regulation is a
matter of much speculation.
What is clear, however, is that the timber industry has
better access to information from the Bush Administration than
the People's Representatives in the Congress of the United
States.
Proposed changes to the regulations are not the only way
the administration seeks to undermine the law. While much
attention in recent days has focused on Julie MacDonald, the
Inspector General issued a report that shed light on problems
that run far deeper than those she caused and those will be the
focus of much of this hearing today.
For all of its talk about faith and religious values, I
find it impossible to reconcile that public persona with this
administration's flagrant lack of regard for the work of the
Creator's hand. As well, I do not find pushing policies that
imperil God's creatures and that place at greater risk of
extinction plants that provide life-saving drugs to be in
keeping with His grand design.
For me to sit here and suggest that the Department is on a
sad and irresponsible mission to undercut species recovery is
an understatement. What we are seeing here--if we could
actually see behind the cloak of secrecy surrounding the
Interior Department--is a complete disregard for the very
science that has equipped us to be responsible stewards of this
earth with which we have been blessed.
We must ask ourselves as a nation, how do we want this
government to run the Endangered Species Program--entangled in
politics, or enlightened by science?
That concludes my opening statement.
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, II,
Chairman, Committee on Natural Resources
Last week, Julie MacDonald resigned her position as Deputy
Assistant Secretary for Fish, Wildlife and Parks at the Department of
the Interior, ending what many staff felt was a reign of terror.
Unfortunately, when she packed up she left behind a lot of baggage,
including an agency that seems bent on abdicating its mandated
responsibilities under the Endangered Species Act to protect God's
creatures for future generations.
From changes in regulations to poorly developed legal reviews that
have left the agency sorely vulnerable to attack in the courts, the
evidence of a systematic effort to undermine the law and species
protection is quite clear. This is an agency that seems focused on one
goal--weakening the law by Administrative fiat and it is doing much of
that work in the shadows, shrouded from public view.
For example, we know that the Department has been contemplating,
for some time, a major rewrite of regulations to implement that law. We
know this because a copy of draft regulations was leaked to the media.
As Chairman of the Committee with oversight of this matter, I asked for
copies of the same draft regulations, but received no response from the
Department. That is, until Monday, two days before this hearing.
That response from Director Dale Hall said, ``The Department has
made no final decision on whether to propose any regulatory changes to
the ESA.'' Yet, the letter includes a chart prepared, ironically, by
the Center for Biological Diversity with the Fish and Wildlife
Service's editorial notes describing their ``current draft proposal.''
While Fish and Wildlife has gone to extreme lengths to keep these
documents away from the Committee, special interest groups challenging
ESA decisions have found it easy enough to get their hands on a version
of them.
Just last week, on May 1, 2007, the American Forest Resource
Council had to amend a complaint it filed in court on March 7, 2007,
citing a regulation that is not even on the books but is rumored to be
under consideration--apparently, top secret consideration--at the
Interior Department. Just how the timber industry was able to procure
the draft regulation is a matter of much speculation.
What is clear, however, is that the timber industry has better
access to information from the Bush Administration than the People's
Representatives in Congress.
Proposed changes to the regulations are not the only way the
Administration seeks to undermine the law. While much attention in
recent days has focused on Julie MacDonald, the Inspector General
issued a report that shed light on problems that run far deeper than
those that she caused and those will be the focus of much of this
hearing today.
For all of its talk about faith and religious values, I find it
impossible to reconcile that public persona with this Administration's
flagrant lack of regard for the work of the Creator's hand. As well, I
do not find pushing policies that imperil God's creatures and that
place at greater risk of extinction plants that provide life-saving
drugs to be in keeping with His grand design.
For me to sit here and suggest that the Department is on a sad and
irresponsible mission to undercut species recovery is an
understatement. What we are seeing here--if we could actually see
behind the cloak of secrecy surrounding the Interior Department--is a
complete disregard for the very science that has equipped us to be
responsible stewards of this Earth with which we have been blessed.
We must ask ourselves as a Nation, how do we want this government
to run the Endangered Species Program--entangled in politics, or
enlightened by science?
______
The Chairman. I recognize the Ranking Member, Mr. Sali.
STATEMENT OF THE HONORABLE BILL SALI, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF IDAHO
Mr. Sali. Thank you, Mr. Chairman.
As someone who has spent a good deal of time reviewing the
impact of the Endangered Species Act, I can assure everyone
within the sound of my voice that no one who originally voted
for this legislation ever envisioned that this Act would be
used to smash the dreams of millions of Americans.
Our forefathers who sacrificed everything for our freedom
would be shocked to learn that Americans are unable to fully
utilize their property because of a blind salamander, ferry
shrimp, fountain darters, ground beatles and kangaroo rats. In
fact, there are 2,489 domestic and foreign species listed under
the Endangered Species Act. The Fish and Wildlife Service has
designed critical habitat for 487 species, yet despite spending
billions of dollars designating millions of acres for critical
habitat and disturbing the lives of millions of property owners
who must in some cases pay exorbitant fees to develop their
land, only eight domestic species have ever been recovered in
more than 30 years.
There is no question that politics and not the Department
of the Interior are running the Endangered Species Act, and it
has been hijacked by misguided Federal judges and radical
environmental organizations whose sole interest is not to
recover species, but to gorge themselves on taxpayers' money.
The Fish and Wildlife Service has not initiated a listing
decision on its own since 1995. Instead of recovering species,
the Service must spend its meager dollars preparing and
defending itself against an endless barrage of lawsuits. It has
gotten so bad that the Service has now hired a full-time
attorney that does nothing except monitor the legal filings
against the agency.
This is not a new problem. It started with the Clinton
Administration and has continued unabated in the Bush
Administration. Organizations like the Center for Biological
Diversity know that they can go to Federal court and sue the
agency over a listing or critical habitat designation. They
know they will win. They will be handsomely compensated for
suing, and they can then hire more lawyers to file or threaten
to file even more lawsuits.
Meanwhile, species continue to languish under the
Endangered Species Act with little, if any, hope of ever
recovering. This Act has become a powerful weapon to stop or
limit development in this country.
Mr. Chairman, instead of criticizing political appointees
within the Department of the Interior for doing their job, this
institution would be better served by asking how we can improve
the Endangered Species Act. There is no one who can objectively
say that this program is working effectively with a less than 1
percent recovery rate because the only entities that are
profiting from the Act are those groups who endlessly sue the
Fish and Wildlife Service and the National Oceanic and
Atmospheric Administration.
In the past four years, millions of dollars have been paid
to litigants in hundreds of court cases. Just imagine if these
funds had been used for the original purpose of the Act, which
was to recover and then remove species from the list, it is
time to stop this madness.
Federal policymakers have a right to question the
conclusions of career biologists. These employees are hard-
working, dedicated public servants, but they are not
infallible.
I look forward to hearing from our witnesses and want to
hear their perspectives on how we can restore the Endangered
Species Act to its original intent. Thank you, Mr. Chairman.
The Chairman. The gentleman from Oregon, Mr. DeFazio.
STATEMENT OF THE HONORABLE PETER A. DeFAZIO, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF OREGON
Mr. DeFazio. Thank you, Mr. Chairman. Thank you for calling
this hearing, particularly in light of recent revelations I
believe this is very timely. I will be brief, but I recently
gave a speech to the assembled timber industry in the Pacific
Northwest, and I started with the quote, you know, ``Those who
forget history are doomed to repeat it.'' And then I went on to
talk about unintended consequences.
Here we have an administration that has bent over backwards
for industry, and some in industry think that this
administration, by perverting science, by substituting
political judgment for science is doing them a big favor. If
you want to change the protections and the management of the
land, you can't go beyond the existing law, and this
administration clearly is attempting to do that.
If you want to have a fair and honest debate, as the
gentleman on the other side of the aisle recommended about
reauthorization of the Endangered Species Act, and updating the
Act, and modifications to it, we should have that. We haven't
debated that issue since 1996, when Mr. Pombo and Mr. Young
stopped short of a reasonable proposal from the other side of
the aisle to update the Act with a mischievous proposal that
was just so ridiculous that Newt Gingrich wouldn't even bring
it to the Floor of the House.
So here we are today fast forward. This administration is
basically repeating everything done by the Bush One
Administration in an attempt to provide favors to industry, and
instead of providing favors what they created was a train
wreck, a train wreck in my region that ended up in the courts,
and a temporary suspension of all Federal timber harvesting,
and they are about to repeat that in my region by again
ignoring scientific and biological advice, and substituting
political opinion improperly and probably illegally.
So I am hopeful that this will be a wake up call both to
the industry and to the administration, and that they don't do
further damage and begin to comply with the law, and if we need
to discuss and debate changes in the law, let us do that.
Thank you, Mr. Chairman.
The Chairman. The gentleman from Colorado, Mr. Lamborn.
Mr. Lamborn. I have no statement at this time, Mr.
Chairman.
The Chairman. The gentlelady from the Virgin Islands, Ms.
Christensen.
Ms. Christensen. I have no statement either, Mr. Chairman.
The Chairman. The gentleman from Arizona, Mr. Grijalva.
STATEMENT OF THE HONORABLE RAUL M. GRIJALVA, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you, Mr. Chairman. Just to thank you
for the hearing, and given the official distortion and
manipulation that is now well chronicled that has happened to
the Endangered Species Act, that has hampered recover, that has
hampered a real look at what this Act should be and should be
doing, I think this hearing is very timely and necessary.
Hopefully, in the light of day and not in some back room,
in a dark room, can we talk about the changes that need to
occur in the Act, and the kinds of protections that need to be
put in place with the bureaucracy so the distortion and
manipulation that is well chronicled does not occur again, and
toward that end, I thank you very much for this hearing, Mr.
Chairman.
The Chairman. We will now proceed with today's witnesses.
The first panel is composed of the following individuals: The
Honorable P. Lynn Scarlett, Deputy Secretary, Department of the
Interior; Ms. Jamie Rappaport Clark, Executive Vice President
of Defenders of Wildlife; Dr. Francesca T. Grifo, Senior
Scientist and Director of Scientific Integrity Program, Union
of Concerned Scientists; and Mr. Jeff Ruch, Executive Director,
Public Employees for Environmental Responsibility
Mr. Sali. Mr. Chairman?
The Chairman. Yes.
Mr. Sali. Mr. Chairman, I am in receipt of a statement from
a deputy regional forester who apparently has taken issue with
some statements that have been ascribed to him in the testimony
of one of the witnesses that will be before us today.
In light of that, Mr. Chairman, and given the high stakes
potentially of this hearing that is being presented, I would
ask that we swear in the witnesses that will appear before the
Committee today.
The Chairman. The Chair would like to allow the individual
in question to submit his testimony, and pursuant to Committee
Rule 4[f], the Chairman may, and I stress the word ``may''
administer oaths to any witness before the Committee, and it is
a discretionary action and this particular Chairman has chosen
not to swear witnesses in.
Mr. Sali. Mr. Chairman, then I would like to point out that
under the False Statements Accountability Act of 1996,
witnesses should be aware that giving false testimony to
Congress could result in penalties equal to that under the
Federal perjury statute, five years in prison and up to
$250,000 in fines.
The Chairman. The witnesses may proceed. Deputy Secretary
Scarlett, you may proceed. As with all witnesses, the Committee
does have prepared testimony, and without objection it will be
considered as read, and printed in the record, and witnesses
are encouraged to keep their oral testimony five minutes in
length.
STATEMENT OF THE HONORABLE P. LYNN SCARLETT,
DEPUTY SECRETARY, U.S. DEPARTMENT OF THE INTERIOR
Ms. Scarlett. Thank you very much, Mr. Chairman, and
Members of the Committee. Thank you for inviting me to discuss
the Department of the Interior's implementation of the
Endangered Species Act.
Secretary Kempthorne, the Department, and the U.S. Fish and
Wildlife Service strongly embrace effective implementation of
the ESA to fulfill its goals. As a life-long bird watcher, I am
both professionally and personally committed to these goals.
Secretary Kempthorne's success in addressing complex issues
springs from his bipartisan approach to solutions. While a
United States Senator representing the State of Idaho, he
worked cooperatively with then Secretary Babbitt on
legislation, Senate Bill 1180, the Endangered Species Recovery
Act of 1997, legislation that emphasized species recovery. It
required that listing decisions be based in empirical field
tested and peer reviewed scientific data. It provided
incentives and opportunities for state, landowners, and the
public to participate in decisionmaking.
These goals remain the centerpiece of Secretary
Kempthorne's vision for implementing the Endangered Species
Act.
After Secretary Kempthorne's confirmation in May 2006, he
directed the Department, with other agencies, to seek idea son
cooperative conservation. This effort culminated in 25
cooperative conservation listening sessions held throughout the
country. Of the written comments we received, more than 80
percent touched on the Endangered Species Act. Several
consistent themes on the ESA emerged from those sessions.
First, the ESA should focus on ecosystem health and species
recovery; second, states should have a greater role in species
protection; third, ESA tools should enhance cooperative
conservation opportunities; fourth, ESA decisions must be
informed by science; fifth, the ESA is often burdensome for
landowners without corresponding significant benefits to
species; and finally, regulatory terms and implementation
practices are unclear and inconsistent.
To address these comments, Secretary Kempthorne asked Fish
and Wildlife Service Director Dale Hall, who is with me here
today, to assemble a group of Fish and Wildlife Service
employees with expertise in the ESA to develop draft ESA
regulatory concepts for consideration.
Recent administrations, Democratic and Republican, along
with Governors, academics and conservationists, have identified
aspects of the Endangered Species Act as currently implemented
that limit efficiency, effectiveness, and conservation results.
The Service's work related to threatened and endangered
species has been in large part driven by lawsuits. The
Service's most current estimate shows that it has 41 lawsuits
involving listing decisions for seven species, a petition
findings for almost 300 species, including a majority of the
candidate species, critical habitat for six species, and five-
year reviews for 89 species.
We believe available resources would be better spent
focusing on actions that directly benefit species, such as
developing and implementing recovery plans and forming
conservation partnerships. The Service has greatly improved the
Endangered Species Act administration in protecting species. A
host of cooperative conservation grant programs promote
partnerships with states, landowners and others. The Service, I
believe, employs rigorous procedure to ensure that the best
available science supports ESA determinations.
I want to underscore Secretary Kempthorne's and my personal
commitment to transparency, quality, and integrity of science
used to inform ESA and other land management decisions. We do
not promote, tolerate, or endorse suppression of scientific
information.
The Service continues its long record of vigorous
implementation of the ESA. The Service intends to publish final
listing determinations for 38 species and proposed critical
habitat for 12 species in Fiscal Year 2008. The Service also
focuses on recovery activity.
There is no better institutional knowledge and expertise
for making the ESA work on the ground than our Fish and
Wildlife Service career employees, and their colleagues in NMFS
with day-to-day responsibility for the ESA's implementation. It
is these experts who prepared a draft ESA document that is
still undergoing refinement. It focuses on enhancing state
involvement in all aspects of the ESA with continued oversight
and final decisionmaking resting with the Service and NMFS. It
creates for the first time regulations focused on the recovery
process. This documents differs in significant ways from the
draft of an earlier document circulated by Salon.com.
The document does not, for example, change the definition
of jeopardy in any way as it exists in current regulations.
Greater emphasis is placed on cooperative partnerships to
implement the ESA. The Department does not now have a complete
proposal for improving the ESA regulations. No decision has
been made as to whether to proceed with proposing changes to
implementing regulations.
Any proposed regulatory changes would, of course, be
proposed in the Federal Register for full public review and
comment. We believe that if the public has a full opportunity
to review proposals with the concepts now under consideration,
they will affirm that these concepts will enhance the
effectiveness of the ESA and its implementation.
The Department and Service are strongly committed to
carrying out our statutory obligations with regard to species
recovery, and to working with our partners and with the
Congress toward that important goal.
I appreciate the hearing, and thank you very much. I would
be happy to answer any questions.
[The prepared statement of Ms. Scarlett follows:]
Statement of P. Lynn Scarlett, Deputy Secretary,
U.S. Department of the Interior
Mr. Chairman and Members of the Committee, thank you for inviting
me to appear before you today to discuss the Department of the
Interior's implementation of the Endangered Species Act of 1973 (ESA).
Secretary Kempthorne, the Department, and the U.S. Fish and Wildlife
Service strongly embrace effective implementation of the ESA to fulfill
its goals.
A Commitment to Recovery
Secretary Kempthorne's success in addressing complex issues springs
from his bipartisan approach to solutions. While a United States
Senator representing the State of Idaho, he worked cooperatively with
then-Secretary Babbitt on legislation, S. 1180, the Endangered Species
Recovery Act of 1997, legislation that emphasized species recovery.
The legislation was successfully reported by the Senate Environment
and Public Works Committee although it was ultimately not enacted.
Secretary Kempthorne's bill set strict requirements for prioritizing
and developing recovery plans for listed species; required that listing
decisions be based on empirical, field-tested, and peer-reviewed
scientific data; and provided incentives and opportunities for states,
landowners, and the public to participate in decision-making. These
goals remain the centerpiece of Secretary Kempthorne's vision for
implementation of the ESA.
At his confirmation hearing before the Senate Energy and Natural
Resources Committee last spring, then-Governor Kempthorne reiterated
his strong desire to work collaboratively on ESA issues. He stated at
that hearing, ``I am intent upon saving species. I am not content with
triage, where you simply say that they are endangered and then you move
on to list the next species. I will always ask, `What are we doing to
actually restore species, instead of just listing them?''' Throughout
his career as a Senator and Governor, the Secretary has focused on
species recovery.
Background
Some of the discussion today will no doubt focus on a draft of
regulatory concepts obtained and published by an online magazine a
little more than a month ago. That document was largely the product of
discussions, in 2005, among agency officials of the Departments of the
Interior and Commerce about ways to improve the ESA.
It was a deliberative document that was not yet complete, nor had
it been formally reviewed within the Department or by other relevant
agencies, and not issued as a formal proposal. Many concepts at that
time remained unresolved and under critical discussion.
After Secretary Kempthorne's confirmation in May 2006, he directed
that the Department, with other agencies, seek ideas on Cooperative
Conservation and a range of issues. This effort culminated in 25
Cooperative Conservation Listening Sessions, held throughout the
country, where more than 30,000 people provided their input and ideas,
through either written or spoken comments, on a range of issues,
including the ESA. Of the written comments received, more than 80
percent commented on the ESA, with many commenting on what they
perceived as impediments to cooperative conservation.
Several consistent themes on the ESA emerged from the Listening
Sessions:
The ESA should focus on ecosystem health and species
recovery;
States should have a greater role in species protection;
ESA tools should enhance cooperative conservation
opportunities;
ESA decisions must be informed by science;
The ESA is often burdensome for landowners without
corresponding significant benefits to species; and
Regulatory terms and implementation practices are unclear
and inconsistent.
To address these comments, Secretary Kempthorne asked FWS Director
Dale Hall to assemble a group of career FWS employees with expertise in
the ESA to develop draft ESA regulatory changes for consideration. The
resulting draft document differs in significant ways from an earlier
document circulated by salon.com.
In the 20 years since ESA regulations were originally promulgated,
the Service and the National Marine Fisheries Service (NMFS) have
learned a great deal about how best to implement the provisions of the
Act. Recent Administrations--Democratic and Republican--along with
governors, academics, and conservationists have identified aspects of
the ESA as currently implemented that limit efficiency, effectiveness
and conservation results. A collaborative group composed of diverse
interests last year reported to the U.S. Senate that ``All agree, at
least in principle, that if new approaches could be identified that
would both improve the effectiveness of habitat conservation efforts
for species and reduce the burden upon landowners and other regulated
interests, those new approaches should be embraced.'' In 2005, the
Administration reviewed the Service's ESA program with the Program
Assessment Rating Tool (PART) and found that the program lacked
adequate performance goals and was limited by strict deadlines and
regulations.
Chief among the needed improvements is a faster rate of recovering
species. Roughly 1,300 domestic species of plants and animals are
listed as either threatened or endangered. To date, just 20 of these
species have recovered and no longer need the protections of the Act.
Just one out of three listed species is considered stable or improving,
compared to last year.
Another opportunity for improvement is to fulfill the Act's vision
of robust partnerships with states, many of whom have significant
expertise in wildlife and plant biology.
Also, many landowners could be stronger conservation partners by
maintaining habitat to attract at-risk species if we could clarify
inconsistent practices and unclear terminology that are tangling us in
litigation.
Consider designation of critical habitat, which has received
significant attention and critique in recent years. Former Secretary
Bruce Babbitt wrote in a New York Times op-ed piece shortly after
leaving office that, in its struggle to keep up with court orders, the
Service had diverted its best scientists and much of its ESA budget
away from more important tasks like evaluating candidates for listing
and providing other protections for species on the brink of extinction.
Protection of habitat is a key to sustaining and recovering
endangered species. However, the critical habitat process as currently
practiced under the Act is not an effective means of conserving
habitat. The Service has characterized the designation of critical
habitat as the most costly and least effective class of regulatory
actions it undertakes.
The Service's work related to threatened and endangered species has
been in large part driven by lawsuits. The Service's most current
estimate shows that it has 41 lawsuits involving listing decisions for
7 species; petition findings for almost 300 species, including a
majority of the candidate species; critical habitat for 6 species; and
5-year reviews for 89 species.
In sum, too much time is spent responding to litigation rather than
putting in place on the ground actions to recover species. We believe
available resources would be better spent focusing on actions that
directly benefit species, such as improving the consultation process,
developing and implementing recovery plans, and forming conservation
partnerships with states, tribes, and private landowners.
Improving Administration of the ESA
The Department has greatly improved ESA administration and
protecting species, yet effectiveness remains constrained under current
rules. Under the banner of the Department's Cooperative Conservation
Initiative, a host of grant programs promote partnerships with states,
landowners, and other citizen stewards to protect and enhance habitat
for threatened and endangered species. These and related grant programs
also help maintain, protect, and restore habitat in ways that help
prevent the need to list species as endangered or threatened.
For example, more than $67 million in grants was provided to 27
states in 2006 to support conservation planning and acquisition of
vital habitat for threatened and endangered fish, wildlife and plants.
The grants, awarded through the Cooperative Endangered Species
Conservation Fund, will benefit species ranging from orchids to bull
trout that are found across the United States. Recovery Land
Acquisition grants benefit 63 listed and 11 candidate species,
including several Hawaii forest birds: the 'akepa, 'kiopo'au, and
Hawaii honeycreeper. Habitat Conservation Planning grants will benefit
111 listed species and 13 candidate species, including Canada lynx,
grizzly bears, bull trout, bald eagles, gray wolves, west-slope
cutthroat trout and Columbia River redband trout. Habitat Conservation
Plan Land Acquisition grants benefit 40 listed species and 3 candidate
species including, including several core populations of federally
listed plants, such as San Jacinto Valley crownscale and slender-horned
spineflower.
The Department has also focused on other means of encouraging
voluntary conservation. The Service uses such tools as Candidate
Conservation Agreements, Candidate Conservation Agreements with
Assurances, Safe Harbor Agreements, Habitat Conservation Plans and
Conservation Banking, which provide for close cooperation with private
landowners, state, tribal, and local governments, and other non-federal
partners that are particularly important in our implementation of the
ESA.
Over the past few years, the Service has improved the Recovery
Program, establishing a process whereby recovery needs of species can
better be prioritized and addressed by Service Regions, and developing
a new recovery implementation database for better tracking of recovery
actions. The Service has streamlined Section 7 consultation processes
for several kinds of activities, such as hazardous fuels treatment
projects, habitat restoration, and recreational activities in the
Pacific Northwest, cutting completion time for consultations under the
program while maintaining species protections.
We have improved the science that underlies all of our decisions,
including decisions made under the ESA. I want to underscore Secretary
Kempthorne's and my personal commitment to transparency, quality, and
integrity of science used to inform ESA and other land management
decisions. Science is the foundation of all of our conservation
efforts. The Department, through the Service and the U.S. Geological
Survey, has a long tradition of scientific excellence.
The FWS works closely with the U.S. Geological Survey in a science
partnership to enhance the administration of the ESA by the Service.
Through a Science Support Partnership program, USGS addresses priority
science needs of the FWS to inform their ESA decisions. The Service and
the USGS together are developing the best scientific information
available for the listing determination for the polar bear.
Consistent with its long-standing policies on peer review and
information standards under the ESA, the Service employs rigorous
procedures to ensure that the best available science supports ESA
determinations. The Department and the Service have established
guidelines, following the direction of the Information Quality Act
(section 515 of P.L. 106-554), to ensure and maximize the quality,
objectivity, utility, and integrity of the information that we
disseminate to the public. Service guidelines establish the policy and
procedures for reviewing, substantiating, and correcting the quality of
the information disseminated.
Under no circumstance do we promote, tolerate, or endorse
suppression of scientific information. Building upon the Service's ESA
peer review policy established in 1994, we also follow the guidelines
for federal agencies delineated in the ``Final Information Quality
Bulletin for Peer Review,'' released by the Office of Management and
Budget on December 16, 2004.
In January 2005, the Service formed a Science Committee, to
strengthen collaboration on science issues throughout the Service and
to help identify needs and opportunities that cut across programs and
regions. The Committee provides advice and recommendations to the
Director concerning science needs, especially those related to meeting
field needs for research, technical assistance, and scientific
information and training.
Committee members have been chosen for their distinguished service,
with every attempt made to appoint those who represent a diverse array
of Service programs, regions and scientific backgrounds. The
Department's goal in taking these actions is to ensure openness and
transparency in the science that underlies and informs our decisions.
We also continue to address critical habitat, listing, and recovery
planning priorities under the ESA. Starting in Fiscal Year 2004, the
Service saw an increase in petition litigation. In response, the
Department approved a shift of critical habitat funds to listing funds
in order to comply with our petition deadlines in 2005 and 2006. The
program expects continued litigation in Fiscal Years 2007 and 2008.
For Fiscal Year 2008, the Service currently anticipates making
final listing determinations for 12 species and proposed listings for 8
species. In terms of critical habitat, the Service intends to publish
final listing determinations for 38 species and proposed critical
habitat for 12 species in Fiscal Year 2008. In Fiscal Year 2007, the
Service currently anticipates publishing 17 final critical habitat
rules, and 17 proposed critical habitat rules. The Service finalized
critical habitat for 29 species and completed listing actions for 15
species in Fiscal Year 2006.
We are also rightly focused on recovery activities. For the past
several years, the Service has increased the involvement of the public
in recovery planning. Public involvement early on and throughout the
planning process ensures recovery actions are feasible and establishes
support for implementation of recovery actions following completion of
a recovery plan. Scientific peer review and public review ensure plans
are based on the best available science and information.
The Service has developed recovery plans on approximately 87
percent of listed species. The development of high quality recovery
plans is a priority for the Service's Recovery Program. Recovery plans
are essential to the effective and efficient implementation of recovery
actions, not only by the Recovery Program, but by other Service
programs, Departmental bureaus, other Federal agencies, and other
partners.
During Fiscal Year 2008, the Service expects to prepare recovery
outlines for species added to the list in Fiscal Year 2007 and to
complete final recovery plans for 10 species, resulting in 88 percent
of species listed 2.5 years or more having approved recovery plans in
Fiscal Year 2008. We estimate that, in Fiscal Year 2007, the Service
will complete final recovery plans for 11 species. In Fiscal Year 2006,
final recovery plans for 40 species were completed, including Atlantic
salmon and 20 California vernal pool species; revised final recovery
plans were drafted for 19 species; and draft plans for an additional 9
species were published.
Endangered Species Act Success Stories
We know that the measure of success under the ESA is recovery of
listed species, and the cumulative years of ESA partnerships described
above are achieving good results. In recent months, the Service
announced the recovery of several species that have come to symbolize
the promise of the ESA: grizzly bears, wolves, and bald eagles.
Grizzly Bears. The Service announced at the end of March that the
Yellowstone population of grizzly bears would be removed from its
``threatened'' status on the list of threatened and endangered species.
Grizzly numbers in the Yellowstone ecosystem have increased from an
estimated population of 136 to 312, when they were listed as threatened
in 1975, to more than 500 bears today.
The bears will now be managed under a comprehensive conservation
strategy developed by state and federal scientists and managers that
includes intensive monitoring of Yellowstone bears, their food, and
their habitat. The conservation strategy incorporates the best
available science and allows state and federal agencies to adjust
management in response to new scientific information or environmental
and bear population changes. State and federal managers will continue
to work cooperatively under this framework to manage and maintain
healthy grizzly bear populations throughout the Greater Yellowstone
area.
The grizzly bear's remarkable comeback is the result of years of
intensive cooperative recovery efforts between federal and state
agencies, conservation groups, and individuals. Such cooperation is
necessary, for these bears require a great deal of space.
Gray Wolves. Recognizing the success of gray wolf efforts under the
ESA and highlighting the cooperation and collaboration among states,
tribes, conservation groups, federal agencies and citizens in affected
areas, the Service announced in January 2007 that the western Great
Lakes population of gray wolves was being removed from the list, and
that it was proposing to remove the northern Rocky Mountain population
of gray wolves from the list.
When the wolf was first listed as endangered in the 1970s, only a
few hundred wolves remained in Minnesota. Recovery criteria outlined in
the Eastern Timber Wolf Recovery Plan include the assured survival of
the gray wolf in Minnesota and a population of 100 or more wolves in
Wisconsin/Michigan for a minimum of five consecutive years. The
recovery plan identified 1,250 to 1,400 as a population goal for
Minnesota. That State's wolf population has been at or above that level
since the late 1970s, and the Wisconsin/Michigan wolf population has
been above 100 since the winter of 1993-94, achieving the latter
numerical goal in the recovery plan. Wolf numbers in the three states
have exceeded the numerical recovery criteria established in the
species' recovery plan.
The minimum recovery goal for wolves in the northern Rocky
Mountains is 30 breeding pairs and at least 300 wolves for three
consecutive years, a goal that was attained in 2002 and has been
exceeded every year since. The Service believes that with approved
state management plans in place in Montana and Idaho, threats to the
wolf population will have been reduced or eliminated in those states.
The northern Rocky Mountain Distinct Population Segment includes all of
Montana, Idaho and Wyoming, the eastern one-third of Washington and
Oregon, and a small part of north-central Utah.
While the Service has approved wolf management plans in Montana and
Idaho, it has determined that Wyoming's state law and wolf management
plan are not sufficient to conserve that State's portion of a recovered
northern Rocky Mountain wolf population. If Wyoming's plan is not
approved before the Service takes final action on this proposal, wolves
would continue to be protected under the ESA in the significant portion
of their range in northwest Wyoming, excluding the national parks,
which have adequate regulatory mechanisms for wolf conservation.
Bald Eagles. Finally, the Department continues efforts toward
delisting the bald eagle, which has recovered in the lower 48 states
from a population estimated at 417 nesting pairs in 1963, to a current
population estimated at over 7,000 breeding pairs. The threats to the
species have been reduced; reproductive success has increased to a
healthy level; and the population is growing and distributed across 47
of the lower 48 states (Vermont does not currently have a nesting
population of bald eagles).
In February of this year, the Service announced that the final
decision on whether to delist the bald eagle would be postponed to no
later than June 29, 2007. The additional four months will give the
Service time to complete additional analyses related to the final rule
and put in place management guidelines and procedures that will make it
easier for the public to understand ongoing Bald and Golden Eagle
Protection Act safeguards, ensuring that eagles continue to thrive once
delisted.
Listening Sessions and the ESA Regulations
After 25 Listening Sessions on Cooperative Conservation, in which
the ESA was mentioned more than any other issue, the Service assembled
a group of career employees, including Assistant Regional Directors
from across the country and employees in the Washington Office's
Endangered Species program, along with career professional staff from
NMFS, to develop a draft of proposed regulations for consideration.
There is no better institutional knowledge and expertise for making the
ESA work on the ground than these career employees with day-to-day
responsibility for the ESA's implementation. To ensure that legal
advice was readily obtainable, representatives from the Department's
Office of the Solicitor and the Department of Commerce and the National
Oceanic and Atmospheric Administration's Office of General Counsel were
also available.
The draft document prepared by this team and which is still
undergoing refinement, focuses on enhancing state involvement in all
aspects of the ESA, with continued oversight and final decision making
by the Service and NMFS; creating, for the first time, regulations
focused on the recovery process; providing more clear and effective
tools to private landowners, municipalities, cities, states, tribes and
others to conserve and recover listed species through more efficient
permitting processes; creating a more efficient process for federal
action agencies to consult with the Service and NMFS under Section 7,
and emphasizing the role all federal agencies have in recovering listed
species; and providing guidance for the species listing petition
process, clarifying language used in the listing and critical habitat
processes, and recognizing existing conservation efforts when making
listing decisions.
This document differs in significant ways from the draft of the
earlier document circulated by Salon.com. The current draft document
strongly emphasizes the recovery process, the definition of
``jeopardy'' as it exists in current regulations is unchanged; rather,
greater emphasis is placed on cooperative partnerships to implement the
ESA. The Department does not yet have a complete proposal for improving
the ESA, and no decision has been made as to whether to proceed with
proposing changes to the implementing regulations. Work continues on
concepts and language that could become proposed rule changes.
Our goal in this work is to greatly improve ESA implementation by
strengthening its conservation purposes while also removing some
disincentives that deter many from engaging in activities that would
benefit species. Any regulatory changes would, of course, be proposed
in the Federal Register for full public review and comment. We believe
that, if the public has a full opportunity to review a proposal with
the concepts now under development, they will affirm that these
concepts will enhance the effectiveness of the ESA and its
implementation.
The Department and the Service are strongly committed to carrying
out our statutory obligations with regard to species recovery and to
working with our partners toward that important goal. Mr. Chairman,
this concludes my prepared testimony. I would be pleased to respond to
any questions you and other members of the Subcommittee might have.
______
The Chairman. Thank you. Ms. Clark.
STATEMENT OF MS. JAMIE RAPPAPORT CLARK,
EXECUTIVE VICE PRESIDENT, DEFENDERS OF WILDLIFE
Ms. Clark. Thank you, Mr. Chairman, and Members of the
Committee.
I am Jamie Rappaport Clark, Executive Vice President of
Defenders of Wildlife. Prior to coming to Defenders, I worked
for the Federal government for almost 20 years, for both the
Department of Defense and the Department of the Interior. I
served as Director of the Fish and Wildlife Service from 1997
to 2001. Thus, I have seen the Endangered Species Act from a
variety of perspectives.
I know the difficulties faced by the dedicated
professionals in the Fish and Wildlife Service, the National
Marine Fishery Service, and other Federal agencies implementing
this law, and bring no criticism against these committed
professionals currently administrating the ESA. However, I
cannot ignore the damage that has been done to endangered
species conservation by political appointees in the current
administration.
Rather than enhancing recovery efforts to expand on
existing successes, I firmly believe that this administration
is actually harming species recovery. It has undermined the
scientific integrity of its programs with political
interference and has slowly starved the program of needed
resources. I realize that these are serious charges, but let us
look at the facts.
Fewer listing of endangered and threatened species have
occurred in this administration than in any previous one, and
that is not because there is a lack of candidates in serious
need of protection. The 57 species protected in the last six
years is just one quarter of the number protected in the four
years of the first President Bush's administration.
The top career professional position in charge of Federal
endangered species efforts has been vacant for more than a
year, and the position has yet to even be advertised for
filling.
The Fish and Wildlife Service programs involved in
implementing the Endangered Species Act have lost at last 30
percent of the staff that they once contained. There has been a
consistent and continuing failure by the administration to
request adequate resources for endangered species conservation,
and the budgets presented to Congress. The Fiscal Year 2008
request is at least 20 percent below the minimum level needed.
The Interior Department's Office of Inspector General has
confirmed that former Deputy Assistant Secretary Julie
MacDonald was ``heavily involved with editing, commenting on,
and reshaping the endangered species program's scientific
reports from the field.''
This went on for many years. The scope and magnitude of
political interference revealed by IG interviews is
unprecedented in my experience. More recently, as Dr. DellaSala
details in his testimony, the administration appears to have
interjected political considerations heavily and to recovery
planning for the Northern Spotted Owl.
I should say here that no one is arguing that science alone
should dictate policy. Science is the foundation on which sound
policy decisions depend, but when political interference tries
to force the scientific process toward a particular answer,
that foundation is undermined and ultimately you wind up making
very bad policy choices.
The problems are even broader than what I have described so
far. Draft regulations dated as recently as two months ago
proposed changes of such significance that they no doubt would
seriously undermine the Endangered Species Act in numerous ways
identified in my written statement.
Defenders appreciates the opportunities provided by Deputy
Secretary Scarlett to discuss the very broad outlines of ESA
regulatory revisions. However, neither our two brief meetings
nor our widely circulated two-page fact sheet have been
particularly illuminating thus far. In fact, frankly, the
discussions and the fact sheet have raised more questions and
concerns than they have answered or allayed.
Rather than to continue to work behind closed doors on a
comprehensive rewrite of the Endangered Species Act
regulations, we have asked the administration to work with a
broad array of stakeholders to find common ground on ways to
improve conservation of imperiled species before going forward
with any proposal.
Success in finding common ground hinges no openness and
transparency. A key first step in that direction is for the
administration to share the text of any changes in the
Endangered Species Act regulations currently under
consideration in a collaborative manner. In the absence of any
inclusive process like this, however, it is only prudent for
Congress and Defenders to focus on the changes we have either
seen in draft or discuss with the administration, and the
general theme in each case is a clear withdrawal of the
services from their Federal responsibility to oversee
implementation of the ESA. It is as though having starved the
endangered species program and dismantled and demoralized its
staff the administration now wants to wash its hands of
carrying out the law all together by turning it over to states
and other Federal agencies that, frankly, are ill equipped to
take it on at this time.
Mr. Chairman, the absence of meaningful congressional
oversight of the administration's implementation of the
Endangered Species Act for the past six years has certainly
contributed to each of the problems I have described today. I
am pleased that under your leadership and as today's hearing
demonstrates, Congress is reasserting its rightful place in
conducting oversight of this critically important law.
I urge you to continue to make full use of this Committee's
oversight authority in the weeks and months ahead, to insist
that the administration work cooperatively with the Congress
and interested stakeholders to protect and recover endangered
species rather than hurriedly pursuing unilateral regulatory
amendments to the Endangered Species Act.
Thank you. I will be happy to answer any questions you or
other members of the Committee might have.
[The prepared statement of Ms. Clark follows:]
Statement of Jamie Rappaport Clark, Executive Vice President,
Defenders of Wildlife
Mister Chairman and members of the Committee, I am Jamie Rappaport
Clark, Executive Vice President of Defenders of Wildlife. Founded in
1947, Defenders of Wildlife has over 500,000 supporters across the
nation and is dedicated to the protection and restoration of wild
animals and plants in their natural communities.
As you know, prior to coming to Defenders of Wildlife, I worked for
the federal government for almost 20 years, for both the Department of
Defense and the Department of the Interior. I served as Director of the
U.S. Fish and Wildlife Service from 1997 to 2001. Thus, I have seen the
Endangered Species Act from different perspectives: that of an agency
working to comply with the law; working for and then leading the agency
charged, along with other federal agencies, states, and private
landowners, with implementing the law; and now leading a conservation
organization working to ensure that the law is fully implemented to
conserve threatened and endangered plants and wildlife.
The common lesson I have drawn from all of these experiences is
that the Endangered Species Act is one of our most farsighted and
important conservation laws. For more than 30 years, the Endangered
Species Act has helped rescue hundreds of species from the catastrophic
permanence of extinction. But the even greater achievement of the
Endangered Species Act has been the efforts it has prompted to recover
species to the point at which they no longer need its protections.
Recovery is what the Endangered Species Act is all about. It is
because of the act that we have wolves in Yellowstone, manatees in
Florida, and sea otters in California. We can marvel at the sight of
bald eagles in the lower 48 states and other magnificent creatures like
the peregrine falcon, the American alligator, and California condors
largely because of the act.
Recovery Efforts Hamstrung by Lack of Support and Political
Interference
Mister Chairman, because I know the difficulties faced by the
dedicated professionals in the U.S. Fish and Wildlife Service, the
National Marine Fisheries Service, and other federal agencies
implementing this law, I am reluctant to criticize those who are
currently administering the Endangered Species Act. However, because I
know how successful the act can be in recovering species and because of
the deep regard I have for those dedicated professionals administering
the act, I cannot ignore the damage that has been done to endangered
species conservation under the current administration. Rather than
enhancing recovery efforts to expand on existing successes, I firmly
believe that this administration is actually hamstringing species
recovery. It has undermined the scientific integrity of its Endangered
Species Act programs with political interference and slowly starved the
program of needed resources.
Those are serious charges, but look at the facts:
The top career professional position in charge of federal
endangered species efforts has been vacant for more than a year, and
the position has yet even to be advertised for filling.
The Fish and Wildlife Service programs involved in implementing the
Endangered Species Act have lost at least 30 percent of the staff they
once contained. In some areas, that rate may be close to 50 percent.
There has been a consistent and continuing failure by the
administration to request adequate resources for endangered and
threatened species conservation in the budgets presented to Congress.
The Fiscal Year 2008 request is at least 20 percent ($40 million) below
the minimum level needed.
Fewer listings of endangered and threatened species have occurred
in this administration than in any previous one and 277 species
remaining on the candidate species list still await initiation of the
listing process. The 57 species brought under the protection of the
Endangered Species Act in the last six years is just one quarter the
number protected in the four years of the administration of President
George Herbert Walker Bush. Listing is the crucial first step in
catalyzing public and private recovery efforts.
The Interior Department's Office of Inspector General (OIG) has
confirmed that former Deputy Assistant Secretary of the Interior for
Fish and Wildlife and Parks Julie MacDonald was--heavily involved with
editing, commenting on, and reshaping the Endangered Species Program's
scientific reports from the field.'' The scope and magnitude of
political interference revealed by OIG interviews is unprecedented in
my experience. In one example cited by the OIG, a listing decision
required by law to be rooted in science was instead ruled by the
personal views of Deputy Assistant Secretary MacDonald, only later to
be overturned by a court that refused to ignore the science. This and
numerous other examples of political interference detailed in the OIG
report have seriously compromised the integrity and credibility of the
endangered species program.
More recently, as Dr. DellaSala details in his testimony, the
administration has interjected political considerations heavily into
recovery planning for the northern spotted owl. A so-called
``Washington oversight committee,'' which initially consisted of Deputy
Assistant Secretary MacDonald and other senior-level administration
political appointees, instructed the spotted owl recovery team of
scientists and other experts to stop work on development of their
conservation approach and develop a second approach that would offer
greater ``flexibility.'' The increased flexibility option would result
in weakening owl habitat protections by (1) delegating authority to the
Forest Service and BLM to decide where to place blocks of owl habitat
without creating lines on a map, (2) providing no information on total
habitat acreages to be managed for owls, and (3) no longer anchoring
spotted owl recovery to the Late Successional Reserves established
under the Northwest Forest Plan. Frankly, the extent of this political
interference in recovery planning so far exceeds anything I have ever
encountered that it is astonishing for its sheer audacity.
An Administrative Rewrite of the Endangered Species Act Behind Closed
Doors
Finally, the issues raised by the potential revisions to the
administrative rules that guide implementation of the Endangered
Species Act, some of which are dated as recently as March, are a source
of great concern.
We appreciate the opportunities afforded some of us to discuss the
very broad outlines of Endangered Species Act regulatory revisions with
Deputy Secretary Scarlett, Director Hall, and Fish and Wildlife Service
and NOAA-Fisheries career staff. However, we have found neither our
discussions nor the widely circulated, two-page fact sheet particularly
illuminating.
In fact, the discussions and fact sheet have raised more questions
and concerns than they have answered or allayed. Moreover, in addition
to the very general descriptions provided by the administration, we
have draft regulations dated as recently as two months ago that propose
changes of such significance that they would seriously undermine the
ability of the Endangered Species Act to protect and recover imperiled
species.
Although the administration maintains that the leaked documents do
not reflect its current intentions, the information they have provided
so far contains scant information on which of these regulatory changes
or portions of them remain on the table. Regardless, there are no
guarantees that revisions off the table now will not find their way
back to the table in any proposed or final rulemaking.
As we noted in our meetings with Deputy Secretary Scarlett and
Director Hall, we believe that the interests of endangered and
threatened species recovery would best be served by working together
openly on matters for which there is support among a wide variety of
interests. In the absence of any inclusive process like this, however,
it is only prudent that the Congress and organizations like Defenders
of Wildlife focus on existing examples of specific administrative rule
changes because we already have seen several iterations of them and we
may see still more. These changes are of deep concern for at least four
reasons.
First, although early intervention to halt the decline of species
is clearly advisable, the proposed changes would almost certainly have
the effect of only allowing listing--and the conservation measures
prompted by a listing--once species are in extreme peril. The effect of
postponing corrective action will be to make recovery and eventual
delisting of species even harder and more expensive than it already is
and more unlikely to occur in any reasonable time frame.
Second, over the years, the Section 7 consultation process between
the Service and other federal agencies has been one of the act's most
successful provisions in reconciling species conservation needs with
other objectives. For example, progress towards the conservation of
species such as the grizzly bear and piping plover would have been
virtually inconceivable without the beneficial influence of Section 7.
Yet, the proposed changes and fact sheet descriptions appear to reduce
the scope of Section 7, reduce the role of the Fish and Wildlife
Service in its implementation, and weaken the substantive standards
that apply to federal agency actions. The net effect of these changes,
like those described above with respect to listing, will almost
certainly be to make species recovery less likely rather than more
likely.
Third, the draft regulations would re-define the term
``conservation'' so that it no longer would be synonymous with recovery
and remove the term ``recovery'' from many places in the regulations.
Proposed rule changes, for example, would re-word the statutory
language on recovery plan contents to remove statements that the goal
of plan requirements is the conservation and survival of species and
remove the term ``recovery'' and the language describing it as a goal
from the reasons to delist a species. We find it difficult to reconcile
these proposed changes with improving recovery of species under the
Endangered Species Act.
Fourth, the proposed regulatory revisions of March 2007 construe
the Endangered Species Act mandate for federal-state cooperation to
mean delegation of current federal responsibilities to the states. The
proposed changes would give the Secretaries of the Interior and
Commerce very broad discretion to grant states authority to assume
responsibility for carrying out much of the endangered species program.
The proposal would allow states to ``request and be given the lead role
in many aspects of the Act, including, but not limited to, Section 4,
Section 7, and Section 10 of the Act.'' The administration's fact sheet
on the regulation changes appears to describe a similar delegation of
responsibility to the states, a fact acknowledged in meetings with the
administration.
As stewards of the plants and animals within their borders, states
are important partners in the conservation of threatened and endangered
species. The Endangered Species Act gives states wide opportunities to
create their own programs for protection and recovery, and to
contribute to federal efforts as well. By increasing the legal
protections given to imperiled plants and animals within their borders,
state endangered species laws can complement the federal law,
supplementing protection of species already listed so that recovery can
be achieved. Strong state laws and state Wildlife Action Plans also can
protect species not listed under the federal act, thereby lessening the
need for federal listing.
As of 2005, however, most of the existing 45 state endangered
species acts merely provide a mechanism for listing and prohibit the
direct killing of listed species. The scope of state prohibitions on
take generally is narrower than the ESA's take prohibition. For
instance, only nine states make it illegal to harm listed species.
Massachusetts is the lone state to bar the ``disruption of nesting,
breeding, feeding or migratory activity.'' Georgia is the only state to
explicitly include destruction of habitat in its take prohibitions, and
it doesn't apply to private lands. No mechanisms exist in 32 state
endangered species laws for recovery, consultation, or critical habitat
designation. Just five states require recovery plans. And five states
have no endangered species law at all, simply relying on the federal
act or nongame programs.
In response to a nationwide survey conducted by Defenders of
Wildlife and the Center for Wildlife Law on state endangered species
protection in 1998, state agency staff identified a number of
constraints to assumption of a greater role in conservation of
endangered species. These included a general lack of funding and staff
and a reluctance or lack of preparation to take on more
responsibilities under the federal law.
Most significantly, however, state agency staff pointed to the
difficulties created by a patchwork of inconsistent and sometimes
ineffective state laws in protecting and recovering species that occur
in multiple states. This situation remains unchanged in 2007. The
administration's draft regulations propose to resolve this dilemma by
requiring that a state ``provide for coordination with all other States
within the current range of the species affected by such granted
authority or delegated activities.'' But this approach fails to address
the concerns identified by state fish and wildlife agency staff. It
also appears to place little value on the broad, interstate view and
coordination that can be provided by the Fish and Wildlife Service or
NOAA-Fisheries for species having multi-state distributions.
The administration's proposed delegation of Endangered Species Act
authority to the states is a change to the law of such significance
that it should be brought to Congress for its consideration, not put in
place by means of administrative fiat. There is no evidence in three
decades of Endangered Species Act legislative history that Members of
Congress or administration officials were sufficiently unhappy with the
relative federal and state roles to even raise it as an issue on the
six occasions in which Endangered Species Act amendments were discussed
and adopted between 1976 and 1988.
A More Constructive Approach to Improving Conservation of Imperiled
Species
The general theme of all the administrative rule changes we have
seen from, or discussed with, the administration is a withdrawal of the
Fish and Wildlife Service and NOAA-Fisheries from implementation of the
Endangered Species Act. Having hamstrung the endangered species program
by starving it of resources and injecting political considerations into
its science, the administration's rewrite of the ESA rules now would
have the Fish and Wildlife Service and NOAA-Fisheries shed the
responsibility entrusted to them by Congress on the basis that the
agencies lack sufficient resources and expertise.
Defenders of Wildlife is committed to improving protection and
recovery of endangered and threatened species under the Endangered
Species Act, and we have worked with you, Mr. Chairman, and others
toward that end. But all indications ranging from leaked documents to
discussions with administration officials are that the administration
is considering policy changes of such scope and magnitude that they
should be brought to Congress for its consideration as amendments to
the Endangered Species Act.
Major changes to the Endangered Species Act are on a fast track
behind closed doors. A spokesperson for the Interior Department was
quoted in an April 26 Washington Times article as saying, ``When we put
out proposed regulations, we will hold a press conference and tell
everyone what we are doing.''
We have asked the administration to adopt a different, more
constructive approach. We have asked that they work with a broad array
of stakeholders to find common ground on ways to improve conservation
of imperiled species prior to going forward with any proposal. The
success of the common endeavor we seek hinges on openness and
transparency. A key first step in that direction is for the
administration to share the text of any changes in the Endangered
Species Act regulations currently are under consideration in a
collaborative manner, not by holding a press conference and publishing
proposed regulations.
Mister Chairman, the absence of meaningful congressional oversight
of the Administration's implementation of the Endangered Species Act
for the past six years has contributed to each of the problems I have
described today. As you are well aware, under previous leadership of
this Committee, hearings were devoted more to undermining the
Endangered Species Act, rather than making sure that those charged with
implementing the law were doing so in a manner that would achieve
successful conservation of endangered species. I am pleased that, under
your leadership Mister Chairman, and as today's hearing demonstrates,
Congress is reasserting its rightful place in conducting oversight.
I urge you to continue to make full use of this Committee's
oversight authority in the weeks and months ahead to insist that the
administration work cooperatively with Congress and stakeholders rather
than hurriedly pursuing unilateral amendments to the Endangered Species
Act via administrative rulemaking. Preventing the extinction of
important plants and wildlife is of such critical importance that close
oversight is essential to assure the appropriate protection of our
natural resources and responsible stewardship by this administration.
Thank you for considering my testimony. I'll be happy to answer
questions.
______
Response to questions submitted for the record by Jamie Clark
Questions from the Republican Members
(1) During your four years as Director of the U.S. Fish and Wildlife
Service, did you always accept without question or modification
the scientific recommendations of our [sic] agency's wildlife
biologists?
I sought to make sure I understood the scientific findings of the
U.S. Fish and Wildlife Service's biologists as well as the limitations
and level of uncertainty associated with those findings. I did not
edit, comment on, or reshape scientific findings from those biologists.
(2) What is the role of the Deputy Assistant Secretary for Fish,
Wildlife and Parks in terms of reviewing listing petitions,
five year species reviews and designations of critical habitat
designation? Are they [sic] legally obligated to accept at face
value the scientific recommendations for listing, five year
reviews and critical habitat designations?
In my experience, the Deputy Assistant Secretary for Fish, Wildlife
and Parks did not personally review listing petitions or five-year
species reviews. On occasion, individuals in this position were briefed
to ensure that they were aware of such decisions and to assist them in
understanding the scientific basis of the decision, and any potential
ramifications that it might have. As I recall, designations of critical
habitat required the approval of the Assistant Secretary for Fish,
Wildlife and Parks. Under the Endangered Species Act, designation of
critical habitat involves both scientific and economic recommendations.
During my tenure, the Assistant Secretary did not seek to modify or
influence the science underlying critical habitat designations, but may
have chosen to address concerns about economic impacts in a manner
consistent with the science but different than the approach recommended
by the Fish and Wildlife Service.
(3) As you know and have testified, the Act requires that once a
species is listed a critical habitat designation is required.
Did you designate critical habitat for every species listed
during your tenure as Director? Why not?
No. In 1995 Congress imposed a moratorium on all Endangered Species
Act listing activities in a rider to a defense supplemental
appropriations bill. That moratorium was in place for an entire year.
No funding could be spent on any activities funded through the listing
account, which included both actual species listings as well as
critical habitat designation, with the result that an extensive backlog
developed of more than 400 species in need of listing. Once the
moratorium was lifted and the Fish and Wildlife Service could again
spend funding on activities under the listing account, the Service
found that it was ``not prudent'' to use limited listing account
dollars on critical habitat designation before more of the backlogged
species could be given at least the basic protections of the Act. Thus,
the overriding priority was getting species onto the list, getting them
under the Act's protection rather than designating critical habitat
which, while important, was overshadowed by the need to provide the
Act's protection to species in great need.
(4) In terms of staff time and resources, how big of an issue were
lawsuits filed against the Fish and Wildlife Service over
listing and designation of critical habitat? Was this a big
deal, an annoyance or a non-factor?
Given the extensive backlog of more than 400 species in need of
listing that resulted from the 1995 moratorium imposed by Congress on
all Endangered Species Act listing activities, I believed then, and I
believe now, that the litigation to compel critical habitat
designation, while important, detracted from the Fish and Wildlife
Service's more pressing and important efforts to get imperiled species
onto the list and under the Act's protection.
(5) Ms. Clark, you testified previously before this Committee that as
Director you tried to improve the Act's effectiveness, increase
the role of states, tribes and landowners, have less regulation
and more incentives for property owners. In fact, you stated
that: ``We are constantly evaluating implementation of the
Endangered Species Act to ensure its implementation in as fair,
flexible manner as we can make possible''. Was that a political
decision you or the Secretary made? In the final analysis,
isn't that exactly what the current leadership of the Fish and
Wildlife Service is trying to accomplish?
Under my leadership and that of Interior Secretary Bruce Babbitt,
the only changes to the Endangered Species Act regulations were ones to
provide support for conservation on private lands under section 10 of
the law. These limited changes were proposed after extensive
consultation with representatives of conservation and regulated
community interests. In contrast, what has been leaked from this
administration and provided in fact sheets and discussions indicates
that major changes to nearly every aspect of Endangered Species Act
implementation are actively under consideration. Changes have been
drafted or described with respect to listing determinations, critical
habitat designation, state involvement, section 7 consultation, and
private lands conservation. In sum, these changes appear to exceed in
scope and magnitude almost anything Congress has ever done in amending
the law during the last 30 years. There has been no meaningful
consultation to find common ground with conservation interests prior to
formally proposing changes in how the Endangered Species Act is carried
out. From the outside, it appears as though a wholesale re-write of the
law is taking place in an effort to accomplish administratively that
which former Representative Pombo could not accomplish legislatively.
(6) What is the value of critical habitat designation without a
recovery plan for the affected species?
The value of critical habitat designation and every other
conservation provision under the Endangered Species Act is enhanced by
the completion of a recovery plan.
(7) When you were the Director of the Fish Wildlife Service did the
President's budget reflect the needs of the ESA programs?
In general, yes. The lack of support by some in Congress to
adequately fund listing and critical habitat designation, as evidenced
by the 1995 moratorium and subsequent appropriation acts, adversely
affected budget requests and funding for those activities.
(8) When you were the Director of the Fish and Wildlife Service how
many ESA lawsuits were there?
I have no records of this statistic. This information likely can be
supplied by the U.S. Fish and Wildlife Service.
(9) Do you think lawsuits effect [sic] the way the agency can do its
job to protect species?
Yes. Lawsuits can both positively and negatively affect the way an
agency does its job to protect species.
(10) How many lawsuits has your organization, the Defenders of
Wildlife, filed against the FWS under the ESA to date? Would
you say that these lawsuits drive the implementation of the
Law? Do these lawsuits follow science or do they circumvent
science in the same way your organization is claiming the Bush
Administration is with their implementation policies?
We do not tally the lawsuits filed by Defenders of Wildlife
according to the statute being challenged. Most lawsuits involved
challenges under multiple statutes in any case. Lawsuits by Defenders
of Wildlife do not drive implementation of the ESA. Rather, these
lawsuits seek to compel compliance with the Endangered Species Act in a
manner that is in accord with the best available scientific
information.
(11) In your testimony, you state that you know how successful the Act
can be in recovering species. To my knowledge only 1 percent of
the species have been recovered and removed from the list.
Fifteen of those removed were due to data errors. How is 1
percent a success? What is your definition of recovery?
Bringing grizzly bears, brown pelicans, peregrine falcons, and soon
the bald eagle back to a point at which the protection of the
Endangered Species Act is no longer necessary is my definition of
recovery. Recent scholarly work by Scott et al. (2005) estimated that
the Endangered Species Act had prevented the extinction of 227 species
and found a positive correlation between the number of years a species
is listed and improvements in its status. As I said in my testimony,
these successes amply demonstrate how successful the Act can be in
recovering species. In my view they ought to be celebrated, not
denigrated.
(12) You speak highly of career scientists and their ability to do
their jobs. The FWS has convened career scientists and managers
to develop these proposed changes to the ESA regulations. If
you support career individuals, why wouldn't you support the
Bush Administration's ground-up efforts utilizing career
individuals to develop regulations to improve the
implementation of the Act? If you are concerned about public
involvement, won't the Service need to go through a public NEPA
review process prior to implementing any changes? Why isn't
that sufficient?
I do not believe that the comprehensive re-write of the Endangered
Species Act regulations that is now underway came at the request or
initiative of career Fish and Wildlife Service scientists and managers.
I believe these career individuals are faithfully trying to provide the
least damaging responses to policy directions given by political
appointees that clearly are intended to largely remove the Service from
its federal responsibility to oversee implementation of the Endangered
Species Act. It's as though having starved the endangered species
program budget and dismantled and demoralized its staff, the
administration now wants to wash its hands of carrying out the law
altogether by turning it over to states and other federal agencies that
are ill-equipped to take it on.
With respect to public involvement, in the long run it will be far
more productive for the administration to work openly with stakeholders
and Congress on those matters for which there exists broad support.
There potentially are a number of such areas of agreement. Defenders of
Wildlife and six other major conservation organizations have asked
Secretaries Kempthorne and Gutierrez to work with us and other
stakeholders to find common ground in conservation of imperiled species
prior to going forward with any proposal. The success of the common
endeavor we seek hinges on openness and transparency. A key first step
in that direction is for the administration to share the text of any
changes in the Endangered Species Act regulations currently are under
consideration in a collaborative manner, not by holding a press
conference and publishing proposed regulations. In any case, I welcome
the support indicated in the question for subjecting any forthcoming
proposal to the requirements of the National Environmental Policy Act.
From everything I have seen so far, there is no question that the
proposal under development by the administration will be a major
federal action significantly affecting the quality of the environment.
(13) During your tenure at Interior, is it your contention that the
Deputy Assistant Secretary or other officials never edited,
commented or reshaped ESA scientific reports?
Yes.
(14) Did the OIG find that Julie MacDonald had broken any laws?
According to the Report of Investigation concerning Deputy
Assistant Secretary of the Interior MacDonald, the Department of the
Interior's Office of Inspector General, ``confirmed that MacDonald has
been heavily involved with editing, commenting on, and reshaping the
Endangered Species Program's scientific reports from the field'' and
``determined that MacDonald disclosed nonpublic information to private
sector sources, including the California Farm Bureau Federation and the
Pacific Legal Foundation.'' The Report states further that ``the OIG
Office of General Counsel's review of this investigation indicates that
MacDonald's conduct violated the Code of Federal Regulations (C.F.R.)
under 5 C.F.R. 9 2635.703 Use of Nonpublic Information and 5 C.F.R. 5
2635.101 Basic Obligation of Public Service, Appearance of Preferential
Treatment.''
(15) Do you or do any of the officers or full-time employees of
Defenders serve on any FACA Committees for Dol or Commerce?
Yes, as of May 20, 2007, the following:
Michael Leahy, Department of Commerce Industry Trade
Advisory Committee on Forest Products (ITAC 7)
(16) How many lawsuits does Defenders currently have against either
Dol or Commerce? How many have they filed since you joined
them? How many had they filed in the 4 years prior to you
joining?
The following is a list of cases on which we are currently a party
against the Departments of the Interior or Commerce:
Defenders of Wildlife v. Gutierrez, No 05-2191 (right
whale)
Butte Environmental Council v. Kempthorne, No 05-629
(vernal pools)
Stevens County v. DOI, No 06-156 (Little Pend Oreille -
grazing)
Defenders of Wildlife v. Kempthorne, No 06-180 (Fl black
bear)
American Bird Conservancy v. Kempthorne, No 06-02631 (red
knot emergency listing)
Cary v. Hall, No 05-4363 (African antelope)
Communities for a Greater Northwest v. DOI, No 1:06-01842
(grizzly intervention)
State of Wyoming v. DOI, No 06-0245J (Wyoming wolf
intervention)
Defenders of Wildlife v. Kempthorne, No 04-1230 (lynx)
Conservation Northwest v. Kempthorne, No 04-1331
(Cascades grizzly)
Defenders of Wildlife v. Kempthorne, No 05-99 (wolverine)
Tucson Herpetological Society v. Kempthorne, No 04-75
(flat-tailed horned lizard)
The Wilderness Society v. Kempthorne, No 98-2395
(National Petroleum Reserve - Alaska)
We do not keep records of lawsuits filed in relation to the tenure
of the Executive Vice President.
(17) Why is litigation so necessary to protect species? Doesn't that
imply that the law needs revision?
Failing all else, litigation may be necessary to protect species in
those unfortunate circumstances in which agencies fail to follow the
law.
(18) You mention the Southern sea otter as a success of the ESA.
Congress enacted specific legislation detailing how DOI was
supposed to deal with an experimental population of
translocated animals. Yet, during your tenure at FWS, the
provisions of the law were not adhered to. In addition, your
agency did not request funding for the provisions in that law.
Because of FWS lack of adhering to the law, commercial
fishermen, those who were supposed to be protected from the
effects of the translocated sea otters were put out of
business. Do you see this as a success? Do you see this as a
precedent that will make it more difficult to get private
landowners to support reintroduction efforts of listed species
in the future? Are you aware that FWS has now decided to
declare the translocation program a failure and walk away from
their obligations under the law?
The southern sea otter is an example of how, when the Endangered
Species Act is applied properly and vigorously, significant progress
can be achieved toward recovery. Although this species remains at risk
and faces a number of significant threats, under the ESA significant
strides have been made. Following the fur trade of the 1800s, the
southern sea otter was believed to be extinct throughout its range. In
the late 1930s, a small remnant population was discovered along the Big
Sur coast. Although that population received protection under
California law, it was not until enactment of the Marine Mammal
Protection Act in 1972 and the Endangered Species Act in 1973 that
federal law ushered in an era of increased protection and gradual
population growth and range expansion. Especially notable in this
regard was the use of the take prohibitions of these two laws in the
mid-1980s to reduce high levels of mortality that were occurring as a
result of incidental capture and drowning in fishing nets and the
cooperative management approaches made possible with the State of
California to impose fishery closures and gear restrictions to reduce
take to comply with federal law. The Endangered Species Act also helped
reduce the risk of oil spills by application of the section 7
consultation process to impose various standards regarding vessel
traffic and oil spill response along the sea otter range, as well as to
address the threat of spills caused by offshore oil exploration and
development. In addition, the ESA has been critically important in
promoting a wide range of recovery actions under section 4, including
the recovery plan issued in 2003. As a result of these actions, the
southern sea otter population has increased from approximately 1,200 in
the early 1980's to approximately 2,750 animals today. The species'
range has expanded from Point Purisma (in the south) to Point
Conception (in the south). The northern end of the range has stayed at
around Half Moon Bay.
At the time legislation was enacted to provide for translocation of
southern sea otters, there were hopes that a population of southern sea
otters at San Nicolas Island would grow to somewhere between 150 and
500 individuals. That population size was never realized and current
numbers approximate only 40 animals. The Fish and Wildlife Service used
a team of experts, the Southern Sea Otter Recovery Team, to help them
evaluate the efficacy of this program. The Service did not walk away
from anything or fail to adhere to the law, rather they used the best
available science and advice from scientific experts, which indicated
that the future existence of southern sea otters would benefit from
natural range expansion to the south, rather than impeding population
growth through a ``no-otter'' or management zone. The Service's
biological opinion under the Endangered Species Act found that
``continuing the containment program and restricting the southern sea
otter to the area north of Point Conception (which marks the current
legal boundary between the parent range and the management zone, with
the exception of the translocation zone at San Nicolas Island) is
likely to jeopardize its continued existence.'' Thus, the provisions of
the translocation law were fully adhered to by the Service because
continuing enforcement of the so-called ``no otter'' or ``management''
zone would have resulted in a violation of the Endangered Species Act's
prohibition on jeopardy. In fact, the commercial fishing industry filed
a lawsuit in 2000 in an effort to force the Service to capture and
remove sea otters from the sea otter enforce to the management zone.
When the Service and environmental group interveners opposed this
lawsuit, the commercial fishing group plaintiffs withdrew their case.
In addition to the likelihood of jeopardy, enforcement of the
management zone would have conflicted with the essential premise of the
translocation law. As it was enacted in 1986, the understanding of the
law was that the management zone would be enforced in exchange for the
establishment of a successful experimental population at San Nicolas
Island. That has not occurred, even to this day. Although the Service
has published a draft EIS to evaluate what should be done about the
translocation, the agency has not yet ``decided to declare the
translocation program a failure'', although such a conclusion does
appear to be justified by the lack of success with the experimental
population. I assume that, if the Service reaches such a conclusion, it
would not ``walk away from its obligations under the law'' but would
instead follow applicable legal requirements and procedures in reaching
a final decision and carrying out the necessary conservation and
management actions.
With regard to funding, the Service and other agencies typically do
not seek specific earmarks for money for individual actions, such as
those referred to in the question. In any event, the Service would not
be allowed to seek funding to undertake an action that would violate
section 7(a)(2) of the Endangered Species Act.
No commercial fishing interests have been ``put out of business''
because of the translocation law. To the extent commercial fishing
interests are experiencing financial difficulties, their problems are
the result primarily of years of unsustainable harvesting practices and
the effects of coastal pollution and habitat degradation. Defenders of
Wildlife and other environmental groups have been exploring with
commercial fishing groups various ways to address the common concern
over coastal pollution and habitat degradation, which are problems that
pose a serious threat to marine wildlife and the livelihood of fishing
businesses.
The experience with the sea otter translocation law has had no
effect on the interest of private parties to support Endangered Species
Act conservation programs. As the record of the Endangered Species Act
implementation demonstrates, the private sector has responded well to
species conservation efforts when appropriate regulatory and other
incentives are available. Such voluntary participation post-dates the
southern sea otter translocation program.
Today, the southern sea otter continues to face a number of serious
threats. These include, as identified in the Recovery Plan: habitat
degradation (oil spills ans other environmental contaminants which lead
to infectious disease) and human take (including shooting, entanglement
in fishing gear, and harassment) and food resource limitations. Just as
the Endangered Species Act helped bring the sea otter to the point of
its current population size and expanded distribution, it is continuing
to play a critically important role in moving forward with actions to
hopefully achieve full recovery. Foremost among these is the
implementation of the recovery plan, which is being carried out by a
recovery implementation team representing all affected stakeholders. In
addition, important research is underway, as directed by that plan in
an effort to identify and halt the current threats to species recovery.
(19) How many species currently listed under the ESA are species that
are not found in the United States? Why is it necessary to list
species under the ESA that are not found in the United States?
If the concern is about trade in those species, doesn't CITES
provide the necessary [sic]
As of May 12, 2007, the U.S. Fish and Wildlife Service identifies
567 species found in other countries that are listed under the
Endangered Species Act. One favorable conservation consequence of
listing these species under the Endangered Species Act is that federal
agencies are required under section 7 to ensure that they do not
authorize, fund, or carry out actions in other nations that would be
likely to jeopardize these species' continued existence. Also, by
listing foreign species under U.S. law, it can provide the necessary
impetus for the parties to CITES to add a species to an appendix under
the treaty and regulate international trade in that species.
______
The Chairman. Thank you. Dr. Grifo.
STATEMENT OF DR. FRANCESCA T. GRIFO, SENIOR SCIENTIST AND
DIRECTOR OF SCIENTIFIC INTEGRITY PROGRAM, UNION OF CONCERNED
SCIENTISTS
Ms. Grifo. Good morning. 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 nonprofit working for a healthy environment and a
safer world. I am also a biologist.
Thank you, Mr. Chairman, Ranking Member Sali, and Members
of the Committee, for the opportunity to speak to you about the
problem of political interference in the work of Federal
scientists.
In March 2006, almost 6,000 biologists wrote a letter
asking Congress to protect the integrity of science in the
implementation of the Endangered Species Act. One of the act's
great strengths is its foundation in sound scientific
principles, and its reliance on the best available science. The
biologists urged that objective scientific information and
methods be used in listing species; that the habitat needs of
endangered species are scientifically well informed; and that
the Endangered Species Act standard of best available science
must rely on impartial scientific experts.
Losing species means losing the potential to solve some of
humanity's most intractable problems, including hunger and
disease. The Endangered Species Act is more than just a law--it
is the ultimate safety net in our life support system.
Unfortunately, time and again science has conflicted with
political goals. Americans lose and politics wins. At the Fish
and Wildlife Service science itself appears to be endangered.
More than 12,000 scientists, including 52 Noble Laureates, have
signed a scientist statement condemning political interference
in science. UCS has compiled over 70 examples of the misuse of
science in its A to Z Guide to Political Interference in
Science.
In 2005, in an attempt to assess the state of science at
the Fish and Wildlife Service, UCS and public employees from
Environmental Responsibility surveyed more than 1,400 Fish and
Wildlife scientists. The scientists reported that pressure to
alter scientific reports for political reasons has become
pervasive. At field offices around the country, Fish and
Wildlife scientists tell of being asked to change scientific
information, remove scientific facts, or come to conclusions
that are not supported by the science.
More than half of all our respondents, and that is 233
scientists, knew of cases where commercial interests have
inappropriately induced the reversal or withdrawal of
scientific conclusions or decisions through political
intervention, and more than two out of three staff scientists--
again that was 303 scientists--and nearly nine out of ten
scientist managers--knew of cases where U.S. Department of the
Interior political appointees have injected themselves into
ecological service's determinations.
More than four out of five, that is 351 scientists, said
that funding to implement the Endangered Species Act is
inadequate. All those numbers should be zero.
One scientist noted that, ``I have been through the
reversal of two listing decisions due to political pressure.
Science was ignored, and worse, manipulated to build a bogus
rationale for reversal of listing decisions.''
Another remarked that, ``Department of the Interior
officials have forced changes in Service documents, and worse,
they have forced upper level managers to say things that are
incorrect.''
While a third scientist wondered, ``Why can't we be honest
when science points in one direction but political reality
results in making a decision to do otherwise? Morale and
credibility will improve if we are honest, rather than trying
to twist the science to make politicians happy.''
These survey results illustrate an alarming disregard for
scientific facts among the political appointees entrusted to
protect threatened and endangered species. There is evidence of
politics trumping science in the listing of the Greater Sage
Grouse, the Gunnison Sage Grouse, Gunnison's Prairie Dog,
Roundtail Chub, Tabernaemontana Rotensis, Trumpeter Swan, and
the White-tailed Prairie Dog. Politics won in the critical
habitat designation of the Bull Trout, the Florida Panther, the
Marbled Murrelet, the Pallid Sturgeon, Piping Plover, Interior
Least Tern, Red Frog, and Salmon and Steel Head, and these
lists are illustrative, not exhaustive.
The Union of Concerned Scientists urges this Committee to
enact reforms. To ensure the work of Federal scientists will
not be subject to political manipulation, the Department of the
Interior should increase transparency in the decisionmaking
process to expose the manipulation of science, and make other
political appointees think twice before altering or distorting
documents.
Open communication among scientists is one of the pillars
of the scientific method. Department of the Interior scientists
should be free to disseminate their research results. Interior
should adopt media and communication policies that ensure
taxpayer-funded scientific research is accessible to Congress,
the media, and the public. Scientists should be proactively
made aware of these rights.
I want to thank the House for approving the Whistle Blower
Protection Enhancement Act. It is now time for the Senate to
act on this important piece of legislation.
Finally, there are three immediate actions: Secretary
Kempthorne should send a clear message to all political
appointees that substituting opinions for science is
unacceptable. In light of the demonstrated pervasiveness of
political interference in the Endangered Species Act decisions
during the past years, Interior should engage in a systematic
review of all Bush Administration decisions to ensure that the
science was not altered or distorted. At the very least,
Secretary Kempthorne should require an immediate re-evaluation
of decisions where political interference has been exposed.
Given the number of recent attempts to undermine the
Endangered Species Act science by Members of Congress and
political appointees, congressional committees of jurisdiction
must act to safeguard the role of science in protecting highly
imperiled species.
We look forward to working with the 110th Congress on
bipartisan legislation, and other reforms to address this
issue. Thank you very much. I will be happy to answer
questions.
[The prepared statement of Ms. Grifo follows:]
Statement of Francesca T. Grifo, Ph.D., Senior Scientist with the
Union of Concerned Scientists Scientific Integrity Program
This testimony is presented by Dr. Francesca Grifo, Senior
Scientist with the Union of Concerned Scientists (UCS), a leading
science-based nonprofit working for a healthy environment and a better
world. The full testimony is submitted for the record. Dr. Grifo will
summarize her statement for the Committee on the problem of political
interference in the work of federal government scientists. This written
testimony contains an overview of the problem of political interference
in science, a summary of the UCS survey of U.S. Fish and Wildlife
Service (FWS) scientists, a summary of documented abuses of science in
Endangered Species Act decisions, and recommended government reforms
needed to restore scientific integrity to the federal policy making
process.
Chairman Rahall, Ranking Member Young, and Members of the
Committee, the Union of Concerned Scientists appreciates the
opportunity to testify today on an extremely important issue--the
federal government's implementation of the Endangered Species Act and
whether the science used to enforce the law has been compromised.
In 1972, President Richard Nixon asked Congress to pass ``a
stronger law to protect endangered species of wildlife.'' 1
But over the years, the law's lofty goals have been compromised.
Indeed, in March 2006, 5,738 biologists wrote a letter asking Congress
to protect the integrity of science in the implementation of the
Endangered Species Act. 2 ``One of the great strengths of
the Endangered Species Act is its foundation in sound scientific
principles and its reliance on the best available science,'' their
letter states. The biologists urged that ``objective scientific
information and methods'' should be used in listing species, that the
habitat needs of endangered species are ``scientifically well-
informed'' and that the Endangered Species Act standard of ``best
available science'' must rely on ``impartial scientific experts.''
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\1\ Michael J. Bean, ``Endangered species, endangered act?''
Environment, 1 Jan. 1999.
\2\ ``Letter from Biologists to the U.S. Senate Concerning Science
in the Endangered Species Act.'' March 2007. Available online: http://
www.ucsusa.org/scientific_integrity/restoring/science-in-the-
endangered.html.
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``Losing species means losing the potential to solve some of
humanity's most intractable problems, including hunger and disease,''
the biologists concluded. ``The Endangered Species Act is more than
just a law--it is the ultimate safety net in our life support system.''
Unfortunately, time and time again, when scientific knowledge has
seemed to be in conflict with its political goals, the current
administration has manipulated the process through which science enters
into its decisions. At many federal agencies and departments, including
the Department of the Interior, this has been accomplished by placing
people who are professionally unqualified or who or who have clear
conflicts of interest in official posts and on scientific advisory
committees; by censoring and suppressing reports by the government's
own scientists, and by actually omitting or distorting scientific data.
Scientific Integrity
Successful application of science has played a large part in the
policies that have made the United States of America the world's most
powerful nation and its citizens increasingly prosperous and healthy.
Although scientific input to the government is rarely the only
factor in public policy decisions, scientific input should always be
weighted from an objective and impartial perspective. Presidents and
administrations of both parties have long adhered to this principle in
forming and implementing policies. Recent actions, however, threaten to
undermine this legacy by preventing the best available science from
informing policy decisions. UCS has compiled over seventy examples in
its A to Z Guide to Political Interference in Science. 3
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\3\ Available Online: http://www.ucsusa.org/atoz.html.
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The misuse of science has occurred across a broad range of issues
such as childhood lead poisoning, toxic mercury emissions, climate
change, reproductive health, and nuclear weapons. Experts at the Food
and Drug Administration (FDA) charged with ensuring the safety of our
food and drug supply, report being pressured to alter their scientific
conclusions. Scientists nominated to serve on scientific advisory
boards report being asked about their political leanings. And
scientists studying climate change have been effectively barred from
communicating their findings to the news media and the public.
Misrepresenting and suppressing scientific knowledge for political
purposes can have serious consequences. For example, the FDA had
pronounced the pain medication Vioxx safe, but as many as 55,000
Americans died before it was withdrawn from the market. 4
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\4\ Dr. David Graham, Testimony to the Senate Finance Committee, 18
November 2004.
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This misuse of science has led Russell Train, the EPA administrator
under Presidents Nixon and Ford, to observe: ``How radically we have
moved away from regulation based on independent findings and
professional analysis of scientific, health and economic data by the
responsible agency to regulation controlled by the White House and
driven primarily by political considerations.'' 5
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\5\ Russell E. Train, ``The Environmental Protection Agency just
isn't like it was in the good old (Nixon) days.''
www.girstmagazine.com, September 22, 2003.
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On February 18, 2004, 62 preeminent scientists articulated these
concerns in a statement titled ``Restoring Scientific Integrity in
Policy Making.'' 6 In this statement, the scientists charged
the Bush administration with widespread and unprecedented
``manipulation in the process through which science enters into its
decisions.''
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\6\ Available Online: http://www.ucsusa.org/scientific_integrity/
interference/scientists-signon-statement.html.
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In the years since the statement was released, more than 12,000
scientists have signed on to the scientists' statement. Signers include
52 Nobel laureates, 63 National Medal of Science recipients, and 195
members of the National Academy of Sciences. A number of these
scientists have served in multiple administrations, both Democratic and
Republican, underscoring the unprecedented nature of the current level
of political interference in science. Individual scientists have been
joined by several major scientific associations, including the American
Association for the Advancement of Science, the American Public Health
Association, the American Geophysical Union, and the Ecological Society
of America, which have addressed the problem at society wide meetings
and have begun to investigate how to defend science from political
interference.
Voices of Fish and Wildlife Service Scientists
Political interference has been pronounced in those federal
agencies tasked with implementing the Endangered Species Act.
In 2005, UCS and Public Employees for Environmental Responsibility
(PEER) distributed a 42-question survey to more than 1,400 Fish and
Wildlife Service (FWS) biologists, ecologists, botanists and other
science professionals working in Ecological Services field offices
across the country to obtain their perceptions of scientific integrity
within the FWS, as well as political interference, resources and
morale. Nearly 30 percent of the scientists returned completed surveys,
despite agency directives not to reply--even on personal time.
The scientists reported that pressure to alter scientific reports
for political reasons has become pervasive at the U.S. Fish and
Wildlife Service. At field offices around the country, Fish and
Wildlife scientists tell of being asked to change scientific
information, remove scientific facts or come to conclusions that are
not supported by the science.
I. Political Interference with Scientific Determinations
Large numbers of agency scientists reported political interference
in scientific determinations.
Nearly half of all respondents whose work is related to
endangered species scientific findings (44 percent) reported that they
``have been directed, for non-scientific reasons, to refrain from
making jeopardy or other findings that are protective of species.'' One
in five agency scientists revealed they have been instructed to
compromise their scientific integrity--reporting that they have been
``directed to inappropriately exclude or alter technical information
from a FWS scientific document,'' such as a biological opinion;
More than half of all respondents (56 percent) knew of
cases where ``commercial interests have inappropriately induced the
reversal or withdrawal of scientific conclusions or decisions through
political intervention;'' and
More than two out of three staff scientists (70 percent)
and nearly nine out of 10 scientist managers (89 percent) knew of cases
``where U.S. Department of the Interior political appointees have
injected themselves into Ecological Services determinations.'' A
majority of respondents also cited interventions by Members of Congress
and local officeholders.
II. Negative Effect on Wildlife Protection
While a majority of the scientists indicated that agency
``scientific documents generally reflect technically rigorous
evaluations of impacts to listed species and associated habitats,''
there is evidence that political intrusion has undermined the FWS's
ability to fulfill its mission of protecting wildlife from extinction.
Three out of four staff scientists and even higher
proportions of scientist managers (78 percent) felt that the FWS is not
``acting effectively to maintain or enhance species and their habitats,
so as to avoid possible listings under the Endangered Species Act;''
For those species already listed as threatened or
endangered under the ESA, more than two out of three scientists (69
percent) did not regard the FWS as effective in its efforts toward
recovery of those listed species;
Nearly two out of three scientists (64 percent) did not
feel the agency ``is moving in the right direction;'' and
More than two-thirds of staff scientists (71 percent) and
more than half of scientist managers (51 percent) did not ``trust FWS
decision makers to make decisions that will protect species and
habitats.''
III. Chilling Effect on Scientific Candor
Agency scientists reported being afraid to speak frankly about
issues and felt constrained in their roles as scientists.
More than a third (42 percent) said they could not openly
express ``concerns about the biological needs of species and habitats
without fear of retaliation'' in public while nearly a third (30
percent) did not feel they could do so even inside the confines of the
agency;
Almost a third (32 percent) felt they are not allowed to
do their jobs as scientists; A significant minority (19 percent)
reported having ``been directed by FWS decision makers to provide
incomplete, inaccurate or misleading information to the public, media
or elected officials;'' however,
Scientific collaboration among FWS scientists, academia
and other federal agency scientists appears to be relatively untainted
by this chilling effect, with a strong majority (83percent) reporting
they felt free to collaborate with their colleagues on species and
habitat issues.
IV. Resources and Morale
While we cannot ascribe low staff morale to any one cause, the
tenor of staff responses and their level of concern about a misuse of
science are cause for concern.
Half of all scientific staff reported that morale is poor
to extremely poor and only 0.5 percent rated morale as excellent;
More than nine out of ten (92 percent) did not feel that
the agency ``has sufficient resources to adequately perform its
environmental mission;'' and
More than four out of five (85 percent) said that funding
to implement the Endangered Species Act is inadequate.
In Their Own Words
As part of the survey, the scientists were also asked how best to
improve the integrity of scientific work at Fish & Wildlife--two-thirds
of respondents provided written responses. By far the concern mentioned
most often was political interference. The scientists' words paint a
vivid picture of political misuse of science.
One scientist noted that ``I have been through the reversal of two
listing decisions due to political pressure. Science was ignored...and
worse manipulated to build a bogus set of rationale for reversal of
these listing decisions.''
Another remarked that ``[r]ecently, DOI officials have forced
changes in Service documents, and worse, they have forced upper-level
managers to say things that are incorrect...,'' while a third explained
that ``As it stands, [fish and wildlife] regional headquarters, [the
Interior Department] and White House leadership are so hostile to our
mission that they will subvert, spin or even illegitimize our
findings.''
One biologist wondered ``Why can't we be honest when science points
in one direction but political reality results in [the agency] making a
decision to do otherwise? Morale and credibility will improve if we are
honest rather than trying to twist science to make politicians happy.''
These survey results illustrate an alarming disregard for
scientific facts among the political appointees entrusted to protect
threatened and endangered species. The ESA requires the best available
science be used as the basis for listing and recovery decisions.
Abuse of Endangered Species Science
In our A to Z Guide to Political Interference in Science, the Union
of Concerned Scientists has documented specific instances where
endangered species data has been compromised. 7 The
following examples address two fundamental facets of the ESA: decisions
to list a species as endangered or threatened; and designation of
critical habitat.
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\7\ Supporting documentation detailing these examples of political
interference in science is available at: http://www.ucsusa.org/
atoz.html.
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Listing Decisions
Greater Sage Grouse
Julie MacDonald, the former Deputy Assistant Secretary for Fish and
Wildlife and Parks at DOI, also interfered with the science behind the
proposed listing of the Greater sage grouse, a highly threatened ground
bird in the American west. A partial copy of Ms. MacDonald's edits and
commentary on a scientific review by agency biologists of the state of
scientific knowledge of the bird and its habitat was obtained by the
New York Times. Many of her comments challenged specific statements
made by biologists, questioned the methodology behind studies, and
dismissed conclusions without providing a scientific basis for her
criticism. Her baseless interference cast enough doubt on the status of
the greater sage grouse that an expert panel recommended against
listing the bird for protection.
Gunnison Sage Grouse
Gunnison Sage grouse have experienced significant declines from
historic numbers; only 4,000 breeding individuals remain in
southwestern Colorado and southeastern Utah. FWS biologists and field
staff were prepared to list the Gunnison sage grouse as endangered and
designate a critical habitat, when the ESA listing for this distinct
species was abruptly delayed and eventually reversed by Julie MacDonald
and other Department of the Interior officials. These officials greatly
edited the scientific reports of the scientists, reducing the
substantial listing proposal to a mere outline of information, and
finally concluded on a ``not warranted'' listing for this imperiled
bird.
Gunnison's Prairie Dog
The Gunnison's prairie dog, a distinct species from the white-
tailed prairie dog, had 90% of its historical range in Arizona, New
Mexico, Utah, and Colorado, reduced by the combined pressures of oil
and gas drilling, urban sprawl, sylvatic plague, and continued shooting
and poisoning. Preliminary studies by FWS scientists showed that the
Gunnison's prairie dog was a candidate for ESA listing until explicit
orders from Julie MacDonald reversed their decision and precluded
further study.
Roundtail Chub
The Roundtail Chub of the lower Colorado River Basin was concluded
to be a distinct population segment by the FWS scientists studying the
fish from the field office of Arizona, but the pending decision was
reversed by FWS officials. The extinction of this population segment,
which is imperiled by a combination of non-native fish introductions
and degradation of its stream and river habitat, would result in the
species being eliminated from roughly a third of its range.
Tabernaemontana rotensis, a rare island tree
Approximate thirty plants remain of the species Tabernaemontana
rotensis, a medium-sized tree with white flowers and orange-red fruit
that grows in the Northern Mariana Islands. In 2000, the FWS published
a rule recognizing T. rotensis as a species and proposing to list it as
an endangered species, but this decision was reversed by the Department
of the Interior in April 2004. Documents show that DOI decision was
influenced by comments from the Air Force, which manages the lands upon
which T. rotensis is primarily found. This decision runs counter to the
recommendations of the Pacific Islands office of FWS, the primary
scientists that work on the species, and the peer reviewers of the
proposed rule, who all supported listing, and to virtually all of the
published literature.
Trumpeter Swan
According to documents released through the Freedom of Information
Act, as well as testimony from consulting scientists, then FWS director
Steve Williams based decisions concerning the status of rare trumpeter
swans on a scientifically flawed report that lacked outside peer review
and seriously misrepresented another study. The attempt to list the
imperiled trumpeter swans in Montana, Wyoming, and Idaho as a distinct
population segment from the plentiful tundra swans of the same region
would have forced the FWS to halt the popular swan hunting season in
Utah. A formal complaint from PEER prompted director Steve Williams to
convene a scientific panel to review the matter; the panel concluded
that the FWS documentation was inadequate for use in a species
determination. Williams overruled the panel's decision and continued to
refuse protection to the trumpeter swan.
White-Tailed Prairie Dog
The white-tailed prairie dog is suffering severe declines, having
vanished from 92 percent of its historical habitat in higher-elevation
grasslands across the western half of Wyoming, western Colorado,
eastern Utah, and southern Montana. Documents show that then Assistant
Secretary MacDonald directly tampered with a scientific determination
by FWS biologists that the white-tailed prairie dog could warrant
Endangered Species Act protection, and further, prevented the agency
from fully reviewing the animal's status. Specifically, she changed
scientific conclusions, and added erroneous scientific information, and
ordered the finding to be changed from positive to negative.
Critical Habitat Designation
Bull Trout
Officials at the U.S. Fish and Wildlife Service deleted chapters
detailing the economic benefits of protecting the bull trout, a
threatened species in the Pacific Northwest, from an independent and
peer-reviewed cost analysis of establishing a critical habitat for the
species. The final published report included no material on the
estimated $215 million in economic benefits, and exaggerated the $230
to $300 million in costs estimated by the researchers. These costs
would primarily fall on hydropower, logging, and highway construction.
White House officials claimed that the methodology of including
benefits with costs in a financial analysis was discouraged, despite
having used the same methodology themselves to justify administration-
supported policies.
Florida Panther
According to FWS biologist Andrew Eller, Jr., FWS officials have
knowingly used flawed science in the agency's assessment of the
endangered Florida panther's habitat and viability in order to
facilitate proposed development in southwest Florida. Eller says agency
officials knowingly inflated data about panther population viability by
erroneously assuming that all known panthers are breeding adults,
discounting juvenile, aged, and ill animals. They have also minimized
assessments of the panthers' habitat needs by equating daytime habitat
use patterns (when the panther is at rest) with nighttime habitat use
patterns (when the panther is most active). An independent scientific
review team has confirmed that the information disseminated by the FWS
about the Florida Panther contains serious errors.
Marbled Murrelet
The Bush administration overruled the opinions of its own
government scientists in deciding that the marbled murrelet in
California, Oregon, and Washington was not genetically or ecologically
distinct from bird populations in Canada and Alaska. These birds were
listed as threatened under the Endangered Species Act in 1992, as they
were disappearing rapidly from the three northwestern states as their
coastal forest habitat came under pressure from human development and
logging. In a review of the bird's status, prompted by the trade group
American Forest Resource Council, the regional offices of the FWS
argued that the murrelet of the Pacific Northwest was ecologically
distinct from its cousins in Canada. However, the federal FWS ignored
these scientists and moved to reduce its protected habitat by 95% and
eventually initiated plans to delist the bird.
Pallid Sturgeon, Piping Plover and Interior Least Tern
In late 2000, a group of scientists that that been studying the
flow of the Missouri river concluded a ten year, independently reviewed
study recommending a river management system mimicking natural seasonal
fluctuations. The scientists contended that such a river plan would
comply with the Endangered Species Act by helping to protect two
species of birds (the threatened piping plover and the endangered
interior least tern) and one species of fish (the endangered pallid
sturgeon). However, the Bush administration intervened by creating a
new team of scientists who worked under incredibly short deadlines,
contained only two of the original 15-member river review team, and
eventually released an ``amendment'' to the original document which was
not subject to peer-review. The conclusion of the new team greatly
softened the recommendation for river flow, and also insisted that the
changes in water level would only affect the sturgeon.
Red Frog
In April 2006, the FWS finalized plans to reduce by nearly 90
percent the critical habitat set aside for the protection of a rare
species of California frog. According to FWS, a new analysis had shown
that the cost of maintaining the original critical habitat for the red-
legged frog was too high and would unfairly burden homeowners and
ranchers. But the analysts who made the cost estimates argued that the
numbers were skewed, since they were not permitted to factor in any
monetary benefits of protecting the land.
Salmon
A panel of scientific experts found that there was a strong
scientific basis for excluding hatchery-raised fish when measuring the
size of wild salmon populations in the Pacific Northwest. Such
population counts are central to determining protection status and
habitat needs under the Endangered Species Act. This central
recommendation was deleted from the final report of the advisory
committee. As the panel's lead scientist, Robert Paine, put it, ``The
members of the panel were told to either strip out our recommendations
or see our report end up in a drawer.'' The Bush administration
subsequently released new determinations which combine hatchery and
wild fish, thus inflating the population counts of several endangered
or threatened naturally spawning fish. The removal of the extensive,
up-to-date scientific record compiled by the advisory committee leaves
these populations open to legal challenges calling for their delisting.
Strategies To Weaken The ESA
Just this year, the Administration has attempted to weaken the ESA
in ways that undermined the original intent of the ESA as passed by
Congress. In March 2007, for example, the Department of the Interior's
Office of Solicitor sent out a memo responding to questions raised by
the FWS about the definition of an ``endangered species''--an issue
that had been raised in a 2001 federal appellate court decision. The
troubling memo concludes that when considering whether a species is
endangered, government officials only have to consider its jeopardy in
the current habitat it occupies, not its historical range. 8
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\8\ ``The Meaning of ``In Danger of Extinction Throughout All or a
Significant Portion of its Range,'' Memo to Director, U.S. Fish and
Wildlife Service from the Office of the Solicitor, United States
Department of the Interior, 16 Mar. 2007.
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Thirty-eight biologists were so concerned about the potential
impact of this memo that they sent a letter to Interior Secretary Dirk
Kempthorne and warned that the memo's conclusions ``will have real and
profoundly detrimental impacts on the conservation of many species and
the habitat on which they depend.'' The letter states, ``Congressional
intent about the act is clear: The Endangered Species Act is intended
to allow species to be restored throughout large portions of their
former range.'' 9
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\9\ Letter to Secretary Dirk Kempthorne regarding proposed changes
to the Endangered Species Act, 30 Apr. 2007.
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Systemic Problems Require Systemic Solutions
The problem of political interference in science will not be solved
by a new Administration or the resignation of additional political
appointees. There will always be pressure on elected officials from
special interests to weaken environmental laws. For that reason the
Union of Concerned Scientists urges this committee to enact systemic
reforms:
Transparency in Scientific Decisions
Scientists at the FWS recommended more transparency in the
decisions making process. Said one FWS biologist, ``Plac[e] much more
scrutiny on the decision-making process between the draft scientific
document and the final decision. The work is great until it hits the
supervisory chain, and then things are dropped, changed, altered
(usually without written record) and then finalized with dismissive
responses to concerns.''
To ensure the work of federal scientists will not be subject to
political manipulation, the Department of the Interior should increase
transparency in the decision-making process to expose manipulation of
science and make other political appointees think twice before altering
or distorting scientific documents. We make the following
recommendations:
The DOI should publish a statement explaining the
scientific rationale for each listing decision and recovery plan. The
statement should justify and defend how FWS staff reconcile scientific
and economic data to make the final decision. The statement must
include the scientific documentation that went into the decision and
the names of the FWS employees and officers involved in the process.
If FWS scientists have significant concerns with or
criticisms of the decision, they must also be able to submit a
statement explaining their disagreement. This would provide them with
an opportunity to make their concerns public and provide FWS with an
opportunity to explain how they have addressed the concerns or why they
are not significant.
DOI should establish a formal and independent scientific
review board for agency policies and decisions.
Scientific Freedoms
Scientists should be allowed basic freedoms to carry out their work
and keep up with advances in their field. One FWS scientist
recommended, ``Encourag[ing] scientists to keep abreast of scientific
information (e.g., Membership in professional societies, pay for them
to attend prof[essional] meetings) and allowing scientists to do their
job-make sure they can focus on getting the science right before they
are bombarded with the social, political and economic angles that come
with each issue.''
DOI scientists should be free to publish their tax-payer
funded research in peer-reviewed journals and other scientific
publications and be able to make oral presentations at professional
society meetings. The only exception should be if the publication or
presentation of the research is subject to Federal export control,
national security, or is proprietary information.
Scientific Communication
Open communication among scientists is one of the pillars of the
scientific method. For society to fully reap the benefits of scientific
advances, information must also flow freely among scientists, policy
makers, and the general public. The federal government must respect the
constitutional right of scientists to speak about any subject,
including policy-related matters and those outside their area of
expertise, so long as the scientists make it clear that they do so in
their private capacity, and such communications do not unreasonably
take from agency time and resources. Scientists should be proactively
made aware of these rights and ensure they are exercised at their
agencies.
DOI should adopt media and communication policies that
ensure tax-payer funded scientific research is open and accessible to
Congress, the media, and the public. The policy should:
Affirm that scientists and other staff have the
fundamental right to express their personal views, provided they
specify that they are not speaking on behalf of, or as a representative
of, the agency but rather in their private capacity.
Create an internal disclosure system to allow for the
confidential reporting and meaningful resolution of inappropriate
alterations, conduct, or conflicts of interest that arise with regard
to media communications.
Include provisions to actively train staff and post
employee rights to scientific freedom in all workplaces and public
areas.
Whistleblower Rights
In the past, scientists who have attempted to disclose political
interference with science have been found ineligible for whistleblower
protection. Under the Whistleblower Protection Enhancement Act, H.R.
985, which recently passed in House of Representatives, these
disclosures are protected. Whistleblower protections for scientists who
report abuse of science would help ensure that basic scientific
freedoms of federal scientists are respected.
Congress should pass the Whistleblower Enhancement Act,
which would give federal scientists the right to expose political
interference in their research without fear of retribution. The House
has approved this measure, and it's time for the Senate to act.
DOI scientists who provide information or assist in an
investigation regarding manipulation or suppression of scientific
research should be given adequate protection from retaliation.
DOI should fully investigate any retaliatory actions
against a scientist who expresses their concerns within or outside of
the agency.
Immediate Actions
There are several immediate actions that the Interior Department
and Congress should take to prevent political interference in science
and reinforce the scientific foundation of the Endangered Species Act:
Interior Department Secretary Dirk Kempthorne should send
a clear message to all political appointees that substituting opinions
for science is unacceptable.
In light of the demonstrated pervasiveness of political
interference in Endangered Species Act decisions during the past
several years, the Interior Department should engage in a systematic
review of all Bush administration decisions to ensure that the science
behind those decisions was not altered or distorted. At the very least,
Secretary Kempthorne should require an immediate reevaluation of
decisions where political interference has been exposed.
Given the number of recent attempts to undermine the
scientific underpinnings of the Endangered Species Act by Members of
Congress and political appointees, congressional committees of
jurisdiction must act to safeguard the role of science in protecting
highly imperiled species.
Restoring Scientific Integrity Throughout Government
In the 109th Congress, the Union of Concerned Scientists strongly
supported comprehensive legislation to protect fact-based information
from distortion in order to give policymakers the best data on which to
make decisions that affect each and every American.
The ``Restore Scientific Integrity to Federal Research and
Policymaking Act,'' sponsored in the House by Representatives Henry
Waxman (D-CA) and Bart Gordon (D-TN) drew 80 sponsors. The prime
sponsor of its Senate companion was Sen. Richard Durbin (D-IL).
We look forward to working with the 110th Congress on comprehensive
bipartisan legislation and other reforms to restore scientific
integrity to federal policymaking.
______
The Chairman. Thank you. Mr. Ruch.
STATEMENT OF MR. JEFF RUCH, EXECUTIVE DIRECTOR,
PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY
Mr. Ruch. Mr. Chairman and Members, my name is Jeff Ruch,
and I am the Executive Director of Public Employees for
Environmental Responsibility, otherwise known as PEER. We are a
service organization for scientists, law enforcement officers,
land managers, attorneys, who face crises on environmental
issues, and as such, we act as sort of a giant shelter for
battered staff, and in this context we see the underside of
many of these conflicts.
In doing this work, we have interviewed scores of
scientists work on the ESA where we have surveyed hundreds of
them. We have deposed managers under oath in litigation, and we
have sparked and monitored official investigations, and our
conclusions are these:
One, is that political manipulation is now thoroughly
corrupting Endangered Species Act science. It has become
widespread and it has become routine, to the point where even
field biologists in remote stations can get a call from a
deputy assistant secretary and be told to change a number. It
is extraordinary.
Second, that this political interference, particularly
under former Secretary Gail Norton and her leadership team,
Craig Manson, Paul Hoffman, Julie MacDonald, none of them had
scientific backgrounds, was directed from the top, and included
and was enforced by kind of a dissemble to succeed policy in
which the perpetrators of fraud were promoted, and scientists
who persisted in disclosing inconvenient facts were ostracized,
marginalized, or in extreme cases, fired.
Finally, that these problems are not limited to the
Department of the Interior. The surveys and other work we have
done in NOAA, NOAA Fisheries, finds just as extensive, if not
more, intense political interference with the work that they
are doing.
Now, to me, I was somewhat surprised when I read Ms.
Scarlett's testimony that she did not mention Julie MacDonald,
and the Department itself has been silent with respect to that
particular affair, and it is unclear whether Interior's posture
is whether Ms. MacDonald did anything wrong, or whether it was
unfortunate that she was caught doing what she was doing.
But the approach of ignoring the elephant in the front row
of this hearing room itself sends a very strong message to
people who work for the Department of the Interior, and that is
that political interference will continue to be tolerated and
woe to those that interfere.
Moreover, it is significant that the Department has
announced no steps to correct the errors that were identified
by its own Inspector General.
I would like to comment for just a second about litigation.
The reason that environmental groups can bring in and win these
lawsuits is that they are relying upon the science generated by
the agency's own specialists. The burden that these groups have
to show, the burden is on the plaintiff. They have to show that
the agency action, they have to show that the Federal
government is acting in an arbitrary and capricious fashion.
They must demonstrate that the Federal government's action has
no rational basis. That is one of the heaviest burdens in
jurisprudence.
But the reason these groups consistently win these suits is
because the agency's own information has been manipulated and
it is difficult to defend before a Federal judge of any
political persuasion.
Because it is clear that the Department of the Interior has
apparently no intention of acting in regard to these matters,
we would urge the Congress to step in, and we would ask that
the Congress take acts to improve accountability, transparency,
and integrity.
In terms of accountability, we would urge that the
Committee focus not only on removing managers that perpetrate
these kind of actions, but also pay some attention to the
scientific, political prisoners of conscience whose careers
have been jeopardized because they have proceeded with
information that is correct but politically inconvenient.
One of the cases we want to draw your attention to is Rex
Wahl, a Bureau of Reclamation biologist who has been sitting at
home at taxpayers' expense for nine months for the crime of
committing candor in disclosing information about pending
Reclamation projects.
The second thing we would urge is transparency. We would
echo the comments made by Dr. Grifo from the Union of Concerned
Scientists, and add one more. NOAA and the Department of
Commerce are about to adopt a far-ranging, unprecedented gag
order that prevents its personnel from making any kind of
statement that is of official interest, even on their own time,
at a scientific conference, at any place without prior review
and approval. We would think that the Congress should step in
and ban these sort of non-disclosure policies because they are
the antithesis of transparency.
Finally, with respect to integrity, we would echo that
whistle blower protection is sorely needed as these scientists
have almost no legal protection when they are just trying to do
their jobs. We would also urge that the Committee legitimize
involvement by scientists and professional societies so that
efforts to promote integrity of science is no longer considered
a conflict of interest as it is under current policy.
Finally, we would urge that the Congress enforce the laws
that allow members of the Civil Service to directly communicate
with the committees without fear of appraisal. We hope that the
Congress takes acts to ensure that taxpayer funds are no longer
used to perpetrate fraud.
[The prepared statement of Mr. Ruch follows:]
Statement of Jeff Ruch, Executive Director,
Public Employees for Environmental Responsibility
Good morning. My name is Jeff Ruch and I am the Executive Director
of Public Employees for Environmental Responsibility (PEER).
PEER is a service organization dedicated to protecting those who
protect our environment. PEER provides legal defense to federal, state,
local and tribal employees dedicated to ecologically responsible
management against the sometimes onerous repercussions of merely doing
their jobs. In addition, PEER serves as a safe, collective and credible
voice for expressing the viewpoints otherwise cloistered within the
cubicles. Headquartered in Washington, D.C., PEER has a network of ten
state and regional offices. Most of our staff and board members are
themselves former public employees.
On a daily basis, public employees in crisis contact PEER. In our
D.C. office alone, we average five ``intakes'' per day. A typical
intake involves a scientist or other specialist who is asked to shade
or distort the truth in order to reach a pre-determined result, such as
a favorable recommendation on a project. It is in this context that
PEER hears from scientists working within the U.S. Fish & Wildlife
Services (FWS), as well as the National Marine Fisheries Service
(NMFS). My remarks reflect the input we have received from these
scientists who feel unable to openly voice their concerns.
In this morning's testimony, I will 1) describe how official
manipulation and distortion of Endangered Species Act (ESA) science has
become pervasive; 2) explain how scientists are often caught in the
political crosshairs of their own agency management with little
recourse; and 3) suggest how Congress can ameliorate this state of
affairs.
I. Official Manipulation and Distortion of ESA Science Is Pervasive
I do not mean to suggest that the type of political interference
described in this testimony originated with the present administration.
The ESA has been plagued by politics since its inception.
In December 1997 PEER published a white paper entitled War of
Attrition: Sabotage of the Endangered Species Act by the U.S.
Department of the Interior. In that white paper we detailed political
intervention by then-Interior Secretary Bruce Babbitt and his top aides
to reverse the findings of agency scientists in eight high-profile ESA
cases. In each case, environmental groups successfully sued Interior
and forced the listing or other action the political intervention was
intended to prevent.
The principal difference in the intervening decade is that what was
an occasional event during the Clinton administration is now a daily
occurrence. The handful of cases PEER cited during the Clinton years is
dwarfed by the scores of such cases being reported under the current
Bush administration. The cases under Clinton where politics trumped
science appear to have been triggered by complaints from state
governors or other high-profile dynamics. By contrast, under the
current Administration, political intervention has become a matter of
routine.
One of the unique aspects of the ESA is the status it accords to
the role ``the best scientific and commercial data available'' as
either the sole or principal guide for the Secretary to make
determinations relative to the Act [ see, for example, 16 U.S.C.
Sec. 1533 (b) (1) (A) and 16 U.S.C. Sec. 1536].
From the earliest days of the current Administration, however,
there has been a profound tension between the facts reported to it by
civil servants and its political goals. For example, after promising
during her confirmation hearings to faithfully report the scientific
findings of agency specialists, five months later, on July 11, 2001,
then-Interior Secretary Gale Norton provided the Congress with a letter
that substantially altered biological findings from FWS concerning
effects of oil development in the Arctic National Wildlife Refuge. All
17 of the major changes made in the FWS evaluation by the Secretary or
her immediate staff (as no other member of her leadership team had yet
been confirmed) pointed in one direction--to minimize the biological
impacts of oil drilling. When questioned about the changes Ms. Norton
ascribed them to typographical errors.
This willingness to rewrite scientific and technical findings to
serve political aims has continued unabated and, by some measures, has
accelerated. In 2002, following a PowerPoint presentation by
presidential counselor Karl Rove to Interior political staff, the
scientific determination of water levels needed to support threatened
coho salmon in the Klamath River was suddenly cut in half without any
biological analysis, in violation of the ESA. At the behest of Bureau
of Reclamation officials, the conclusion of a draft biological opinion
prepared by a NMFS team was altered to lower the minimal in-stream flow
levels below what the fisheries scientists believed necessary for the
survival of coho salmon in the Klamath River. Late that summer, the
Klamath experienced the largest fish kill in the history of the Pacific
Northwest.
In the ensuing years, the political rewrite of ESA scientific
documents has become a routine practice. Last fall, for example, the
conclusion of a scientific assessment on whether the Gunnison's prairie
dog should be listed under the ESA was changed under orders by a
political appointee--Interior Deputy Assistant Secretary Julie
MacDonald, an engineer by training, who has been quite energetic in
rewriting biological opinions. In this case, a draft opinion which
found listing of the Gunnison's prairie dog to be scientifically
warranted sparked this terse e-mailed directive:
``Per Julie please make pd finding negative. Thanks''
In other words, all of the scientific analysis would remain
unchanged, only the conclusion (the positive recommendation) would
change. This suggests a blatant, almost casual, approach to political
interference with ESA science.
At the same time, PEER has received scores of complaints from FWS
and NMFS scientists about similar acts of manipulation. To find out how
widespread this experience was, in 2005, PEER in partnership with the
Union of Concerned Scientists (UCS) surveyed more than 1,400 FWS
biologists, ecologists and botanists working in field offices across
the country to obtain their perceptions of scientific integrity within
the agency. The survey had a 30% rate of return and produced some of
the following results:
Nearly half of all respondents whose work is related to
endangered species scientific findings (44%) reported that they ``have
been directed, for non-scientific reasons, to refrain from making
jeopardy or other findings that are protective of species.'' One in
five agency scientists said they have been ``directed to
inappropriately exclude or alter technical information from a FWS
scientific document'';
More than half of all respondents (56%) cited cases where
``commercial interests have inappropriately induced the reversal or
withdrawal of scientific conclusions or decisions through political
intervention''; and
More than a third (42%) said they could not openly
express ``concerns about the biological needs of species and habitats
without fear of retaliation'' in public while nearly a third (30%) felt
they could not do so even inside the confines of the agency. Almost a
third (32%) felt they are not allowed to do their jobs as scientists.
In essays submitted on the topic of how to improve integrity at
FWS, many biologists cited Julie MacDonald by name. Most essays,
however, were couched in more general terms:
``We are not allowed to be honest and forthright, we are
expected to rubber stamp everything. I have 20 years of federal service
in this and this is the worst it has ever been.''
``I have never seen so many findings and recommendations
by the field be turned around at the regional and Washington level. All
we can do at the field level is ensure that our administration record
is complete and hope we get sued by an environmental or conservation
organization.''
``Recently, [Interior] officials have forced changes in
Service documents, and worse, they have forced upper-level managers to
say things that are incorrect...It's one thing for the Department to
dismiss our recommendations, it's quite another to be forced (under
veiled threat of removal) to say something that is counter our best
professional judgment.''
Later that year, the two groups surveyed 460 NMFS scientists
charged with administering the ESA. More than a quarter (27%) of the
scientists returned the surveys with even more disturbing results:
An even stronger majority (58%) knew of cases in which
high-level Commerce Department appointees or managers ``have
inappropriately altered [NMFS] determinations;''
More than one third (37%) have ``been directed, for non-
scientific reasons, to refrain from making findings that are
protective'' of marine life; and
Nearly one in four (24%) of those conducting such work
reported being ``directed to inappropriately exclude or alter technical
information from a...scientific document.''
In essays submitted on the topic of how to improve the integrity of
scientific work at the agency, the predominant concern raised by the
NMFS scientists was political interference:
``It seems that we are encouraged to think too much about
the consequences and how to get around them, rather than just basing
our recommendations on the best available data.''
``[I]t is not uncommon to be directed to not communicate
debates in writing. I have also seen written documents that include
internal discussions/debate purposefully omitted from administrative
records with no valid reasoning.''
``Removing the implication that an ESA Section 7 Jeopardy
determination is never or almost never justified--this view is
frequently held and expressed by managers. A huge problem is that a
Sec. 7 consultation for ESA, whether the science is good or bad, that
does not cause problems for an action agency is not heartily
scrutinized. But a determination that results in more protection for
the species and restricts an agency action or lengthens their timeline
is always scrutinized and pressure may be applied to change the
determination even if valid.''
Not every manipulation of ESA science is blatant. Some are subtle,
involving re-interpretations or technical guidance that on their face
appear neutral but are, in fact, designed to skew scientific results.
For example, in January 2005, Dale Hall, the then-FWS Southwest
Regional Director, issued a new policy forbidding biologists from using
wildlife genetics to protect or aid recovery of endangered and
threatened species. As a result, agency biologists are prohibited from
even considering unique genetic lineages in protecting or recovering
wildlife in danger of extinction.
By prohibiting consideration of individual or unique populations,
Hall's policy allows FWS to declare wildlife species secure based on
the status of any single population (even a population in captivity,
such as within a zoo). This means the agency could pronounce species
recovered even if a majority of populations were on the brink of
extinction or permit approval of development projects that extirpate
whole populations.
While seemingly neutral on its face, the policy was timed to block
the ESA listing of the Lesser Prairie-Chicken, as well as to water down
the recovery plans for the Mexican Spotted Owl and the Southwest Willow
Flycatcher as well as a number of desert fish species, among other
species.
This policy even provoked a rare, though fruitless, internal
protest. Then-Mountain-Prairie Regional Director Ralph Morgenweck,
attacked the new policy, citing several examples where genetic
diversity has been critical to species' survival because it allows
wildlife to adapt to emerging threats, diseases and changing
conditions. In his memo of protest, Morgenweck stated:
``I have concerns that the policy could run counter to the
purpose of the Endangered Species Act to recover the ecosystems
upon which endangered and threatened species depend. It also
may contradict our direction to use the best available science
in endangered species decisions in some cases.''
Mr. Morgenweck's protest was ignored. Shortly thereafter, the
author of the policy, Dale Hall, was nominated and confirmed as the
Director of the FWS.
Lastly in this regard, one important measure of the pervasiveness
of official scientific fraud and distortion is the high success rate by
conservation groups in winning ESA lawsuits against the government. In
order for these non-profit groups to prevail in court, they must show
that the federal government acted in an arbitrary and capricious
manner. This is one of the heaviest burdens in civil jurisprudence in
that the plaintiffs must show that the government agency had no
rational basis for its decision.
The way in which these, often small, groups prevail is by showing
that the Secretary of Interior or Commerce ignored their own
scientists. In other words, ESA lawsuits against Interior or Commerce
are powered almost exclusively by the research generated (and then
suppressed or rewritten) by the agency itself.
II. Scientists Are Caught in the Political Crosshairs with Little
Recourse
In our experience, biologists in FWS and NMFS typically have little
interest in politics; their passion is the resource. It often comes as
quite a shock when they find themselves caught up in the political
winds blowing out of Washington, DC. In those instances, these
specialists are like deer caught in the headlights, not knowing where
to run, as a truck barrels down threatening to flatten their careers.
Compounding the risks is the relative delicacy of scientific
careers, which may be derailed by agency actions that would not trouble
other professionals. In some scientific disciplines (particularly those
within FWS and NMFS), the ``publish or perish'' dynamic means that if
an agency prevents the submission of manuscripts to peer reviewed
journals the scientist is put at a (sometimes fatal) competitive
disadvantage. Being denied permission to attend a professional
conference or present a paper at such a conference can cause grievous
career harm. When administered as punishments these tactics can be
quite devastating, but they do not rise to the legal standard of a
``personnel action'' within federal civil service law and thus are very
difficult to challenge or review.
On the other hand, some agency tactics for punishing scientists who
disclose inconvenient truths are far from nuanced:
One Bureau of Reclamation biologist represented by PEER
has been home on paid administrative leave for nine months. His
supposed offense was sending e-mails to federal agencies and an
environmental group pointing out problems in Bureau filings and
reports. The biologist, Charles (Rex) Wahl., was also the agency NEPA
(National Environmental Policy Act) coordinator whose job it is to keep
stakeholders informed. Originally, Reclamation proposed to fire Wahl
for being ``subversive'' and revealing ``administratively controlled
information.'' This January, the Bureau withdrew those charges and
instead proposed dismissal on the grounds of causing ``embarrassment''
for putting the agency in a ``negative light.'' For good measure, the
Bureau also dismissed his wife, Cherie, from her temporary clerk-typist
position. Meanwhile, Rex Wahl sits at home and collects his pay;
A FWS biologist who protested diversion of critical
habitat found her e-mail privileges ``suspended'' until the end of the
fiscal year; and
A biologist who raised concerns about growing damage
cause by off-road vehicles was abruptly removed from that program and
re-assigned to a position with no duties in an office that has no phone
or computer.
Unfortunately, wronged federal scientists who seek vindication face
steep challenges.
A. Federal Scientists Have Scant Legal Protection
This Congress is currently reviewing legislation to strengthen the
distressingly weak Whistleblower Protection Act. I will not reiterate
the arguments in that debate except to note that scientists who raise
concerns about the quality of studies or the validity of findings often
have no legal protection at all.
In the federal civil service, scientists risk their jobs and their
careers if they are courageous enough to deliver accurate but
politically inconvenient findings. For openers, the practice of ``good
science'' is not recognized as protected activity under the federal
Whistleblower Protection Act, unless 1) the scientist is reporting a
falsification or other distortion that violates a law or regulation; or
2) the scientific manipulation creates an imminent danger to public
health or safety.
Absent those unusual circumstances, a disclosure of a skewed
methodology, suppression of key data or the alteration of a data-driven
recommendation is treated as if it were a policy dispute, for which the
disclosing scientist has no legal protection or standing.
In 2003, nearly half of the federal civilian workforce (in the
Departments of Homeland Security and Defense) lost traditional civil
service protections. In these agencies, the emerging management regime
resembles a private sector, at-will employment system. Scientists in
these agencies can easily be fired, de-funded, transferred or otherwise
redirected simply because the results of their scientific work cause
political displeasure.
On, May 30, 2006, Justice Samuel Alito cast his first deciding vote
in Garcetti v. Ceballos (126 S. Ct. 1951) which held that public
servants have no First Amendment rights in their role as government
employees. The central premise of this ruling is public employees per
se have no free speech status because their speech is owned by the
government.
The court held that civil servants enjoy First Amendment rights
only when they act outside their work role and go public. Thus, under
the Supreme Court's formulation, telling an inconvenient truth at work
allows no constitutional defense against on-the-job retaliation.
The only protection the Court identified for public servants is
whistleblower legislation. Unfortunately, the federal Whistleblower
Protection Act has been interpreted to exclude disclosures made within
the scope of duty. Thus, internal agency communications often lack any
legal protection whatsoever--constitutional or statutory.
The only body of law that protects government scientists is the
handful of environmental statutes, such as the federal Clean Air Act,
that protect disclosures made by any employee, public or private
sector, that further the implementation of those acts. The ESA,
however, has no such whistleblower provision. Moreover, the Bush
administration has recently ruled that all but two of the six
environmental laws with such whistleblower provisions are off-limits to
federal employees under the doctrine of sovereign immunity--based on
the old English common law maxim that ``The King Can Do No Wrong.''
B. Agencies Reward Scientific Fraud
Compounding this daunting legal climate is the tendency by the
agencies to promote or reward the very officials who perpetrate the
distortions of scientific work. The reason behind this perverse dynamic
seems evident--managers who dissemble to achieve a pre-determined
result are simply doing the bidding of the agency's top political
appointees. In another context, then-Department of Justice Chief-of-
Staff Kyle Sampson expressed the concept when he testified that the
distinction between politics and performance was ``artificial.''
To convey just how widespread this ``lie to succeed'' culture has
become in federal service, consider two recent examples:
In 2005, a Commerce Office of Inspector General report
found that a key NMFS biological opinion on the effects of diverting
Sacramento River water from the San Francisco Bay Delta to thirsty
Southern California had been improperly altered to find no adverse
effects. The responsible party identified by the Inspector General was
one James Lecky, a regional official. Shortly thereafter Mr. Lecky was
promoted to become the agency's Director of Protected Resources, in
which position he oversees production of all the biological opinions on
threatened and endangered species; and
One of the rare instances in which FWS has admitted that
it committed scientific fraud involves use of skewed biology in
assessing the habitat needs and population of the endangered Florida
panther (discussed in the following section). The central figure in
this episode was Jay Slack, the Field Supervisor of the FWS South
Florida Field Office in Vero Beach. Mr. Slack fired the FWS biologist,
Andrew Eller, who had challenged the fraud. Following a whistleblower
complaint waged by PEER, Mr. Eller was restored to FWS in a courthouse
steps settlement. Shortly thereafter, Mr. Slack received a Meritorious
Service Award. Six months later in February 2006, Slack was promoted to
serve as Deputy Regional Director of the FWS Mountain-Prairie Region,
responsible for the eight-state area of Colorado, Montana, Wyoming,
Utah, Nebraska, Kansas and the Dakotas.
C. Profiles in Biological Courage
From reports that PEER has received there are regions where
political pressure to change scientific findings is particularly acute.
This is not meant to suggest that other regions do not have these
problems, only that further congressional investigation into this topic
would likely find fertile ground in these suppression ``hot spots.''
These hot spots coincide with swelling populations pushing against
shrinking wildlife habitats:
Southwest Florida: The challenges facing federal biologists in
South Florida are almost beyond description. Attached to my testimony
is a letter by Ann Hauck on behalf of the Council of Civic Associations
[Attachment I] which conveys how deep-seated the difficulties in that
fast-growing region are.
In that region, FWS biologists are forbidden from issuing ESA
``jeopardy letters''--no matter how destructive the development
project. As these new developments sprawl across the tattered habitat
of the endangered Florida panther, avoiding a finding of jeopardy
remains quite a challenge for FWS. The agency had to resort to using
scientific fictions to inflate panther population and inaccurately
minimize habitat needs. Here are some of the fictions which FWS
admitted that it employed, in response to a Data Quality Act challenge
filed by PEER and FWS biologist Andy Eller:
Relying on daytime habitat use patterns (when the panther
is at rest) while ignoring nighttime habitat use patterns (when the
panther is active);
Assuming that all known panthers are breeding adults,
discounting juvenile, aged and ill animals; and
Using population estimates, reproductive rates, and
kitten survival rates not supported by field data.
Then-FWS Director Steven Williams, who made the formal admission of
error in response to the PEER/Eller challenge, resigned the day before
it was announced. As it was announced, the FWS Southeastern Regional
Office held a press conference in which it declared that not one single
decision or biological review would change as a result of the decision.
Pacific Northwest: Fishery biologists in both NMFS and FWS working
on issues involving dams and their management, especially within the
Federal Columbia River Power System, are being subjected to a severe
form of cognitive dissonance. These scientists are being asked to
ignore evidence as to the negative effect these structures are having
on listed fish populations and to overestimate the salutary effect of
various mitigation measures.
One FWS biologist has described an impending ``biological train
wreck'' on the Columbia River, pitting survival of endangered fish
populations against rising power rates and threats of artificially
manipulated floods, in describing a concerted effort by agency
officials to obstruct implementation of the ESA.
Southwest: Booming population growth in the arid Southwest is
pushing many species toward extinction but federal recovery plans are
tangled in inter-agency and political conflict. For example, FWS
scientists find endangered and threatened fish of the Gila River basin
in Southern Arizona and Western New Mexico continue to decline because
key steps in approved recovery plans are not implemented by their own
agency, particularly control of nonnative game fish managed by the
state wildlife agencies which are supposed to be assisting in federal
recovery plan implementation.
A recovery plan is a basic provision of the Endangered Species Act.
It outlines the steps needed to prevent possible extinction of a
federally-listed species and to restore a healthy self-sustaining
species. The recovery plans are sound but there is no consistent
follow-through. The conflicting mandate of the FWS to protect native
fish versus the state wildlife agencies' promotion of sport fishing has
stalemated effective actions in addressing root causes of the
continuing deterioration in the status of the native species.
In all of the above-described settings, scores of federal
scientists are struggling mightily to respect their professional ethics
while maintaining a career in federal service.
III. Congress Can Restore Scientific Integrity
Congress has the ability to address the deterioration in the
integrity of official ESA science. PEER would offer the following
recommendations:
A. Insist on Accountability for Political Appointees and Managers
Any progress in this area will be problematic unless those
political appointees and managers who perpetrate scientific fraud or
manipulation suffer negative career consequences. For example, the
Interior Department has yet to condemn the conduct of the recently-
resigned Julie MacDonald. The continued silence from Secretary Dirk
Kempthorne sends a strong signal that misrepresenting agency scientific
research is a practice is endorsed by Interior leadership. The posture
of Interior appears to be that unless the interference is publicly
exposed in an embarrassing fashion rewriting scientific documents for
non-scientific reasons is a ``no-harm-no-foul'' infraction.
Significantly, the only recent instance in which Interior
Department leadership embraced the concept of scientific integrity has
been as a tool to punish what it perceived to be scientists with an
agenda. In 2002,
The Washington Times cooked up a scandalous hoax in which the
central allegation was that several FWS, U.S. Forest Service and
Washington State scientists had hatched a plot to close large sections
of Western public lands by planting phony samples of fur from the
threatened Canada lynx. The Washington Times then attempted to sell ad
space to PEER and other environmental groups so that the ``other side''
of this story would be printed in their pages.
Despite repeated internal and external investigations that debunked
this hoax (the scientists had sent in outside samples to test the
private DNA laboratory but these samples were never part of the lynx
habitat survey), Members of Congress, abetted by top Interior
officials, decried how ESA science had ``gotten out of control.''
When the furor died down and the scientists were vindicated, a
somewhat sheepish Interior Department published a Code of Scientific
Ethics, as a face-saving step to show that it had done something to
ensure that its scientists would never again go out of control.
Although Interior issued a press release with the Code attached, the
Code never appeared within any Interior manuals. There remains broad
confusion as to its status, meaning and application.
This semi-official Interior Code of Scientific Conduct has among
its provisions the following:
``I will act in the interest of the advancement of
science and contribute the best, highest quality scientific
information.''
``I will neither hinder the scientific and information
gathering activities of others nor engage in dishonesty, fraud, deceit,
misrepresentation, or other scientific, research or professional
misconduct.''
``I will place quality and objectivity of scientific
activities and information ahead of personal gain or allegiance to
individuals or organizations.''
Interior's Code of Scientific Conduct [the full text can be seen in
Attachment II] should be formally promulgated and made explicitly
binding on its political appointees and managers.
B. Transparency Will Deter Distortions
Supreme Court Justice Louis Brandeis once said ``Sunshine is the
best disinfectant,'' and his prescription has application here.
Congress should require that internal alterations of scientific
reports become part of the public record, so that the evolution of
official findings can be traced. In particular, alterations by
political appointees of FWS and NMFS scientific documents should be
reported to the Congress with a mandatory written explanation for the
basis of the alteration.
If these changes to scientific conclusions must be explained in the
clear light of day, it should deter some of the grosser distortions.
Conversely, if Interior or Commerce Department leaders argue that the
changes their political appointees make are appropriate, they should
not mind sharing that justification with the rest of us.
Retrospectively, the Interior Department has yet to correct the
scientific misrepresentations made my Ms. MacDonald that were
identified by the Inspector General. The Interior Department should
affirmatively correct these errors now, rather than waiting for them to
be invalidated one-by-one through court orders produced by ESA
challenges.
Moreover, Ms. MacDonald was not acting as a lone rogue. Her actions
fit into a pattern of scientific misrepresentations perpetrated by her
former colleagues, including Deputy Assistant Secretary Paul Hoffman
and former Assistant Secretary Craig Manson. If Interior is not willing
to go back and correct the errors mad by these political appointees,
then the Congress should step in and order an independent review of the
revisions made by Interior appointees since 2002. This congressionally-
chartered scientific ``Truth Commission'' would identify the errors
that need to be corrected. Correcting the ESA scientific record now
would prevent much future litigation, and render several existing
lawsuits moot.
C. Stop Suppression of Science by Prohibiting Agency Gag Orders
One of the most disturbing findings of the PEER/UCS surveys was
that federal scientists were unsure about what they could or could not
say or write to colleagues in academia or other agencies. As a result,
the natural give-and-take of scientific development is stunted by
politically-inspired public communication policies that require all
communications be officially vetted.
PEER believes that the confusion among scientists is the direct
result of deliberately vague policies that generally restrain agency
scientists from interacting with outsiders. For example, the FWS on May
5, 2004 held an all-staff ``Town Meeting'' to tout its ``scientific
excellence.'' That afternoon, all employees were supposed to take part
in an ``interactive discussion'' via telephone conference, Internet
connection or satellite download with then-Director Steve Williams.
At that meeting, Mr. Williams announced that FWS would begin
concerted interaction with professional societies. He was then asked by
a participant whether he would address the Interior ethics guidelines
which still discourage agency scientists from more than passing
involvement with associations dedicated to raising and protecting
scientific standards. The ethics guidelines classify these professional
societies as the sources of potential conflict of interest. Ironically,
agency lawyers are free to participate in state bar or legal
association activities but scientists have no comparable freedom.
In other instances, agency constraints on scientists are not as
subtle. For example, on March 29, 2007, the Commerce Department posted
a new administrative order on ``Public Communications'' requiring that
agency climate, weather and marine scientists obtain agency pre-
approval to speak or write, whether on or off-duty, concerning any
scientific topic deemed ``of official interest.''
This new order, which becomes effective this month, would repeal a
more liberal ``open science'' policy adopted by the National Oceanic &
Atmospheric Administration on February 14, 2006. The agency also
rejected a more open policy adopted last year by the National
Aeronautics and Space Administration. This new policy also was rushed
to print despite an ongoing Commerce Office of Inspector General review
of communication policies that was undertaken at congressional request.
Although couched in rhetoric about the need for ``broad and open
dissemination of research results [and] open exchange of scientific
ideas,'' the new order forbids agency scientists from communicating any
relevant information, even if prepared and delivered on their own time
as private citizens, which has not been approved by the official chain-
of-command:
Scientists must give the Commerce Department at least two
weeks ``advance notice'' of any written, oral or audiovisual
presentation prepared on their own time if it ``is a matter of official
interest to the Department because it relates to Department programs,
policies or operations.''
Any ``fundamental research communication'' must ``before
the communication occurs'' be submitted to and approved by the
designated ``head of the operating unit.'' While the directive states
that approval may not be withheld ``based on policy, budget, or
management implications of the research,'' it does not define these
terms and limits any appeal to within Commerce; and
It is so all-encompassing that the only exception is for
National Weather Service employees who may ``as part of their routine
responsibilities to communicate information about the weather to the
public.''
While claiming to provide clarity, the new Commerce order gives
conflicting directives, on one hand telling scientists that if unsure
whether a conclusion has been officially approved ``then the researcher
must make clear that he or she is representing his or her individual
conclusion.'' Yet, another part of the order states non-official
communications ``may not take place or be prepared during working
hours.'' This conflict means that every scientist who answers an
unexpected question at a conference puts his or her career at risk by
giving an honest answer.
The rights of non-national security agency scientists should not
vary from agency to agency. Congress should ban the Commerce Department
and other similar gag orders and allow federal scientists to freely
communicate and argue about science.
D. Strengthen Whistleblower Protections and Extend Them to Scientists
The House of Representatives (H.R. 985) recently passed legislation
that extends civil service whistleblower protection to federal
scientists who report data manipulation or suppression. Enactment of
that legislation would help address many of the problems discussed at
this hearing.
In addition to strengthening the scope and application of federal
whistleblower statutes, PEER suggests three specific steps that
directly address ESA and related science:
1. Enact a Whistleblower Provision for ESA. As noted earlier, ESA
lacks the type of whistleblower protection that exists in several other
environmental statutes. Applying this sort of whistleblower protection
to ESA (PEER would also urge application to the National Environmental
Policy Act) will mean that federal scientists working on these issues
would be able to do their jobs free from the prospect of reprisal for
doing their jobs too well on a controversial or politically-charged
issue.
2. Clarify Laws So That Federal Scientists Are Not Barred by
Sovereign Immunity. Most would agree that federal agencies should not
be above the law, but executive branch agencies are doing just that
with respect to environmental whistleblower laws. The re-emergence of
the sovereign immunity doctrine is rooted in the argument that Congress
did not explicitly indicate its intent to waive sovereign immunity.
Thus, Congress could put this legal shibboleth to flight by
affirmatively declaring that these laws apply to the federal government
in the same manner as they apply to the private sector.
3. Legalize Federal Scientist Participation in Professional
Societies. Anything that increases the transparency of agency
scientific decision-making, particularly by involving knowledgeable,
credible and disinterested outside specialists contributes to the
factors safeguarding scientific integrity. Congress should make it
explicitly clear that federal employee involvement with professional
organizations dedicated to improving the quality of science is not a
real or apparent conflict of interest but is just the opposite--an
activity which furthers the agency mission. Congress should revive the
stillborn 2005 FWS initiative on professional openness by a) directing
agency ethics offices to encourage rather than discourage staff
involvement in professional societies; and b) promoting, through
resolution, appropriation language or other mechanism, federal
participation and partnerships with outside scientific bodies.
E. Put Some Teeth into the Right to Communicate with Congress
Congress itself can also play a direct role in strengthening the
scientific integrity within federal service. The threat of disclosure
to Congress can deter or reverse informational distortions.
Unfortunately, the ability of federal employees to communicate with
Congress is tenuous.
During the past few years there have been many instances where
scientists and technical specialists have been constrained from
communicating findings directly to Congress. Probably the most
prominent example involved Richard Foster, the actuary for the Medicare
program, who was prevented from informing Congress the pending
prescription drug bill that was ultimately enacted would cost
approximately $150 billion or more than had been previously estimated.
In its examination of that case, the Congressional Research Service
(CRS) opined that the restraints placed on Mr. Foster forbidding him
from revealing the ``true'' cost estimates violated prohibitions (the
``Lloyd Lafollette Acts'') against interference with communications
between a federal employee and a Member of Congress. Notwithstanding
that finding, CRS was silent as to what could or should be done either
in that case or to prevent future violations. A review of those
prohibitions shows that Congress envisioned the denial of appropriated
funds to support such violations but Congress failed to provide a means
for invoking that sanction. Without a way to enforce it, the law
becomes merely a rhetorical prop.
PEER would suggest that Congress put some teeth in laws that
safeguard its right to receive information from federal employees.
Authorizing citizen suits to recover appropriated funds misused in
restricting communication directly from the salaries paid to officials
who violate this law would allow Members of Congress to directly
enforce these laws. This somewhat personal yet public benefit remedy
would allow individual suppressors of information to be judged in the
bright light of day.
Conclusion
On the issue of political interference with ESA science, 1) the
Science Advisor to the President; 2) the Chief Science Advisor to NMFS)
and 3) and the Science Advisor to the Interior Secretary have all been
conspicuously silent. Presumably, it is their jobs to take the lead in
identifying and rooting out misuse of science but, in actuality, these
positions function as cheerleaders and apologists.
It is precisely because political interference has become so
ingrained in these two agencies, Interior and Commerce, charged with
implementing ESA that a dramatic reversal will be required to purge the
political content from ESA scientific findings. The first step toward
pursuing this improvement is admitting the problem.
If, however, the current administration does not concede that its
political intrusions have obstructed ESA, it is unlikely to seek any
remedies--and that job will fall to Congress and the courts.
ATTACHMENT I
The Council of Civic Associations, Inc.
24910 Goldcrest Drive
Bonita Springs, Florida, 34134
(608) 238 0539
May 9, 2007
To The House Committee on Natural Resources:
The attached report has been prepared by the Council of Civic
Associations, Inc., a not-for-profit organization founded in 1996. We
are affiliated with over 70 civic organizations, government liaisons
and community leaders in South Florida. Our goal is to make government
at all levels accountable for enforcing the laws for which they are
responsible. We believe laws enacted for the benefit of all citizens
are being ignored in order to benefit specific special interest groups.
The following contains excerpts from a report submitted by the
Council of Civic Associations, Inc., (CCA) to the House Committee on
Natural Resources on March 8, 2007. This 28-page report and attachments
document the disregard for the enforcement of existing laws that has
become commonplace among governmental bodies at the federal, state and
local levels. It further documents the proactive marginalizing or
outright silencing of governmental employees who conscientiously
attempt to live up to the responsibilities of their positions.
Although the House Committee on Natural Resources May 9th hearing
will focus on the implementation of the ESA, the Committee should take
note that the Clean Water Act is a vital component to protecting
endangered species in Florida, where there are seven endangered,
species, seven threatened species and 21 species of special concern
that are wetland-dependent.
At the same time, the public agencies which are charged with
protecting resources are missing in action. The U.S. Environmental
Protection Agency (USEPA) office in SW Florida has been closed and the
West Palm Beach office has been stripped of its former authority with
key staff reassigned to report to Atlanta. The Southwest Florida U.S.
Fish & Wildlife Service (USFWS) ecological field office responsible for
area permit review, including biological opinions has also been closed.
Mr. Bubba Wade, a Sr. Vice President of U.S. Sugar, is a governing
board member of the South Florida Water Management District and
represents sugar interests on the Board.
As you conduct your committee's oversight activities, we would ask
you to direct attention to:
1. The absence of any meaningful cumulative analysis of the scores
of new developments covering thousands of acres taking place in the
midst of what is universally known as some of the most sensitive
wildlife habitat in the U.S., including Picayune Strand State Forest,
Big Cypress National Preserve, Florida Panther National Wildlife Refuge
(NWR), Ten Thousand Island NWR, Rookery Bay National Estuarine Research
Reserve, J.N. Ding Darling NWR, Estero Bay Aquatic Preserve and public
lands purchased with federal funding, e.g., Southern Golden Gate
Estates and Fakahatchee Strand.
The slash pine forests, including hydric pine flatwoods, which are
rare outside of SW Florida, have been identified as an imperiled
ecosystem due to a loss of 88 percent from 1900 to 1989 (Source: Noss
and Peters, 1995). Hydric pine flatwoods support 31 mammal, 139 bird,
40 reptile, 17 amphibian and 22 fish species, including 100 federally
listed species, 274 migratory bird species occur in SW Florida; 175 of
these are found in aquatic habitats. Of the 992 plants species found in
hydric pine flatwoods, 98 species are state listed (Source: Florida
Game and Fresh Water Fish Commission [Wood, 1994]).
As a FWS spokesperson stated:
``The panther represents what is left of the eco-system, a
symbol of everything else that is going to disappear unless
habitat is set aside.''
2. The decision of the USFWS to stop issuing jeopardy biological
opinions (JBOs) for any of the myriad of proposed developments
destroying the tattered shreds of endangered species habitat in this
region. The question your committee should answer is--what good is the
ESA if the principal federal enforcement agency is scared to death to
use it? Even the U.S. Army Corps of Engineers (USACE) Jacksonville
District Chief Regulatory Office, Dr. John Hall (RET.), claimed in an
e-mail that ``the political pressure on FWS is evident to anyone who
reads the records of their BO's on the panther.'' ``In my opinion, they
play politics themselves.''
Some examples include--
A FWS field biologist was told to re-write the biological
opinion for Winding Cypress [permit proposal], which is located in the
middle of a swamp at the headwaters of Rookery Bay National Estuarine
Reserve. He was told to write the opinion with a ``positive spin,'' and
when he refused, it was re-written for him. The developer--a major
political donor--complained to his superiors. ``I was told to back off
under threat of insubordination.'' According to the biologist, ``the
compensation proposed was less than the formula used at that time
projected.'' In a personal e-mail, the biologist commented ``A lobbyist
for Van Ness Feldman, and a good friend of Jay's (former FWS Vero Beach
Ecological Services director)'' intervened during the deliberations on
panther habitat compensation for Winding Cypress. The FWS scientist was
reassigned to another state.
The FWS issued 58 recommendations of denial within the
1998-2001 time frame and 15 incidental taking comments. Since 2000, the
FWS has issued 20 biological opinions that have permitted major
destruction of panther habitat. About 16,000 acres were destroyed or
degraded in 11 of these projects.
Facing pressure from developers and Collier County
leaders, FWS shrank the panther focus area last December by nearly
900,000 acres, an area roughly the size of Rhode Island. Land is
vitally important for a species that requires up to 200 square miles of
territory per creature. Yet, the FWS has never issued a ``jeopardy
biological opinion'' that would halt a development in panther habitat.
There have been 40 Florida panther deaths since 2000 and 11 died last
year on Florida roads. This represents arguably more than 10 percent of
the panther population.'' (Source: Naples Daily News).
The FWS is now allowing developers to partially write
their own biological opinions to--speed things up--on whether their
project would doom the Florida panther to extinction (St. Petersburg
Press).
Naples Reserve, adjacent to the east boundary of Winding
Cypress is the single project that FWS elevated to the Corps for permit
denial. The Service request for denial went all the way to DC but was
rejected by the Corps and the permit was issued.
The FWS is not the lone recipient of political
interference on the Winding Cypress project. The CCA was informed by a
reliable source that Mr. Bob Szabo of the lobbying firm, Van Ness
Feldman was brought in specifically to talk to Mr. Jimmy Palmer,
regional administrator, USEPA, Atlanta, regarding the project. An e-
mail, from Palmer to the West Palm Beach office, dated 9/17/2002,
states: ``Cool your jets and focus on the status of the matter. Bob
Szabo (Van Ness Feldman--Wash. D.C.) is a friend of mine who is wired
tightly into some VERY high places. He (and others) are (sic) voicing
concerns about how Bruce [Boler] conducts his business.'' (Note: Boler
was an USEPA biologist who claimed it was permitted even though it did
not meet water quality criteria at the time). Boler moved to another
federal agency. He claims the developers were the ones most anxious to
get rid of him because he objected to the development funded report
that said wetlands create pollution.
3. A plethora of biological, hydrological or other technical
objections to development projects having been reversed, suppressed,
diluted or otherwise obviated for reasons completely apart from
technical merits of those objections.
______
RECOMMENDATIONS: The following is a list of recommendations
compiled by regional, state and federal regulatory sources to address
some of the serious deterioration of natural resource protections in
Florida:
1. Congress should request a report by an independent source, e.g.,
the National Academies of Science, to determine how the Nation's only
national estuary program established for preservation, the Charlotte
Harbor National Estuary Program (NEP) area, had its resources so
thoroughly degraded by federal actions in the ten years since it was
established that it now needs a complete restoration program. EPA
establishes NEPs yet during the worst of the destruction the EPA
leadership remained silent. The EPA Office of Inspector General (IG)
should investigate corruption at the top and how science-based
information is not reported under the current leadership structure. The
IG should report on the degradation that occurred since the designation
of the NEP and what management reforms at the federal level are needed
to ensure a restoration plan can be initiated and successfully carried
out.
2. The federal government should investigate questionable land
deals for Everglades Restoration, e.g., Palm Beach Aggregates and the
South Florida Water District (Source: Palm Beach Post).
3. Congress must authorize the formation of an independent
oversight committee to review USACE projects (McCain/Feingold
legislation).
4. Congress should form an independent authority to carry out the
404 wetlands program and, in so doing, reduce the USACE role to that of
a commenting agency. At the heart of the problem is a conflict of
culture: the agency's role to find engineering solutions--weirs,
canals, ditches, reservoirs--to accommodate the needs and impacts of
growth while purporting to protect naturally functioning wetlands.
5. Congress must authorize the EPA to withdraw Florida's authority
to issue NPDES discharge permits under Clean Water Act (CWA). In a
press release dated August, 2003, Senator Joseph Lieberman states:
``The Florida Department of Environmental Protection/South Florida
Water Management Department permit and certification programs are not
meeting CWA standards.''
6. Congress must amend the Clean Water Act to add clarity and
certainty. At the same time, Congress must develop independent
oversight to remove political and special interest influence.
7. Congress must require that there is better, more streamlined
communication between the agencies, whether they are federal or state.
There is a long, unnecessary history of one agency not knowing (and not
caring) what the other agency is doing. The result is that developers
are able to play one agency against the other to the detriment of the
environment.
8. Fundamentally, the CWA will only be effective if the regulatory
agencies decide to embark upon meaningful enforcement of the ESA and
CWA. This means that both civic and criminal enforcement must be
allowed.
Attachment II
U.S. DEPARTMENT OF INTERIOR
THE CODE OF SCIENTIFIC CONDUCT
To the best of my ability:
> I will act in the interest of the advancement of science and
contribute the best, highest quality scientific information for the
Department of the Interior.
> I will conduct, manage, judge, report, and communicate scientific
activities and information honestly, thoroughly and without conflict of
interest.
> I will be responsible for the resources entrusted to me,
including equipment, employees' time, and funds. I will be accountable
for the prompt and accurate collection, use, and reporting of all
financial resources and transactions under my control.
> I will disclose the research methods to the local communities,
Indian tribes, and other individuals whose interest and resource uses
are studied; and respect the confidential and proprietary information
provided by those individuals to the fullest extent permitted by law.
> I will neither hinder the scientific and information gathering
activities of others nor engage in dishonesty, fraud, deceit,
misrepresentation, or other scientific, research or professional
misconduct.
> I will welcome constructive criticism of my scientific activities
and information, participate in appropriate peer reviews, and critique
others' work in a respectful manner amid objective scientific review.
> I will be diligent in the creation, use, preservation, and
maintenance of collections and data records; adhere to established
quality assurance and quality control programs; follow the records
retention policies of the Department; and comply with Federal law and
established agreements related to the use, security, and release of
confidential and proprietary data.
> I will know, understand and adhere to standards of public
information dissemination and the formal publication of scientific
information and respect the intellectual property rights of others.
> I will be responsible in all scientific activities for both the
collection and interpretation of data I collect and the integrity of
conclusions I present.
> I will place quality and objectivity of scientific activities and
information ahead of personal gain or allegiance to individuals or
organizations.
______
Response to questions submitted for the record by Jeff Ruch
Questions from Republican Members
(1) Would you agree that if you phrase a question a certain way in a
survey you can get the response you are looking for?
Phrasing of survey questions affects both response rate and
response pattern.
If the Republican Members are interested in ensuring that a
dispassionate survey of U.S. Fish & Wildlife Service (FWS) scientists
has been conducted, PEER stands ready to assist you in conducting your
own survey of that cohort.
The PEER/UCS survey questions were vetted by a committee on current
and former FWS employees so that each statement on the survey form
reflected the precise concern being voiced by their colleagues.
Attached are that full survey and the results. Should the
Republican Members have problems with the phrasing of any particular
item in the survey, please do not hesitate to share it.
The essay question offered FWS employees a free form venue to vent
on the issue of scientific integrity in any manner they chose. I would
request that the Republican Members read the essays written by the
scientists and hear the concerns directly from the horse's mouth.
(2) What do you think of Mr. Horn's testimony where he describes
making policy decisions after receiving differing scientific
recommendations? Do you agree that in those cases it is
necessary for a policy person to make decisions that not all
scientists would agree with?
I found Mr. Horn's testimony to be disjointed and contradictory.
Mr. Horn is not a scientist but is a lobbyist for the recreational
vehicle industry.
On one hand, he appeared to be saying that all ESA decisions are
not based on pure science but are judgment calls and then proceeds to
attack the decision to consider listing the polar bear as a ``triumph
of politics over science.'' Go figure.
As explained at the hearing, the ESA lays out a distinct role for
what have been labeled ``policy considerations.'' Otherwise, the ESA
decisions are, by law, required to reflect the best available science.
An untrained ``policy person'' (i.e., political appointee) has no
business acting as a scientific referee or peer review committee of
one.
(3) Would you agree that science is never clear cut, that two
scientists could research an issue and come up with different
results or opinions?
I am not a scientist.
From my experience as a lawyer I believe that, on many issues,
scientific consensus is possible and that courts frequently assess
scientific evidence for purposes of determining whether a legal
threshold has been met.
Conversely, there are instances where scientists interpret the same
facts differently. That is precisely why proposed Administration
policies restricting the speech and publication of research by federal
scientists are inimical to the promotion of scientific integrity.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Results of 2005 USFWS Ecological Services Survey
Below are essay responses to the following survey question:
42. The integrity of the scientific work produced by USFWS Ecological
Services could best be improved by:
This is a sample of some of the most compelling or representative
answers from each region. The essay responses are sorted according to
region, Region 1 through Region 7, ending with responses for which the
region is unknown (due to missing postal stamp on return envelope).
Within each region the responses are displayed according to one of
eleven popular topics or miscellaneous (category twelve). Each response
is preceded by a code indicating several things about that particular
respondent. The code is: survey number assigned by PEER--region--
state--manager (M) or staff (S).
Please let me know if you have any questions about this
information.
REGION 1 (Pacific: CA, NV, ID, OR, WA, HI)
I: Removing politics/political influence over scientific decisions
414-R1-OR-M
Removal of Julie McDonald from Dept of Interior. I have never
before seen the boldness of intimidation demonstrated by a single
political appointee. She has modified the behavior of the entire
agency.
I believe there should be a through investigation of her abuse of
discretionary authority and modification of science information
provided in FWS documents.
407-R1-CA-S
The biological determinations of the field offices should not be
ignored and overridden by non-biologists in the Interior. If they must
override field office biological determinations they should do so early
in the process rather than at the last minute.
405-R1-NV-S
Exposing interference at the department level (Julie MacDonald)
004-R1-CA-S
Staying true to biological analyses regardless of the political
climate.
013-R1-ID-S
Reducing the influence of employees in the assistant secretary of
Interiors office on field office decisions.
014-R1-ID-S
I do not know if improvement is possible in this political climate.
I have been through the reversal of two listing decisions due to
political pressure. Science was ignored--and worse manipulated to build
a bogus set of rationale for reversal of these listing decisions. I
have very little hope for any improvement--and I fear that the current
trend of political meddling will only worsen in the next four years.
019-R1-NV-S
I have never seen so many findings and recommendations by the field
be turned around at the regional and Washington level. All we can do at
the field level is ensure that our administration record is complete
and hope we get sued by an environmental or conservation organization.
028-R1-HI-S
It is wrong that non-scientists take our work and use only the
parts of it they like and cut out the rest.
036-R1-ID-S
Removing the politics from supposed ``Scientifically-based''
decisions. At least tell the public the decisions are based on policy
and don't try to hide behind science.
038-R1-CA-S
There needs to be a fire wall between political appointees in the
Dept of the Interior and FWS so that we can produce rules and reports
without political interference
040-R1-HI-S
Remove politics from the process. Everyone is afraid to make any
decisions or conduct any action that would be views as controversial.
Biologists on the bottom just try to keep their heads down and stay out
of trouble. They have absolutely no power. All they can do is write
memos to the files defending their positions that only come to light if
the files get FOIA'd. The process really is broken, but not in the ways
discussed by politicians and the press.
042-R1-WA-S
Dept of Interior is making substantial changes to the Ecological
Services related decision with no scientific analysis or basis.
045-R1-CA-S
Figuring out a way to reduce political influence on decisions,
Interference from politicians and commercial interests undermine
successful implementations of the Act. Those people with power
defiantly get more advantageous BOs and receive priority in processing.
056-R1-WA-S
The Dept. of the Interior should be using the scientific
information generated by FWS ecological services staff and making
decisions based on science and not on political agendas of the current
administration.
057-R1-WA-S
Only do those things if we are committed to making science-based
rather than political-based decisions. No sense in making science more
credible if we have no intention of using science in the decision-
making process.
060-R1-OR-S
Keeping politics out of our staff work and working from a
collaborative and objective point.
061-R1-WA-S
Separating scientific findings from management decisions that are
not based solely in science.
066-R1-WA-S
Allowing USFWS scientists to make decisions, rather than having
them dictated by the DOI.
075-R1-OR-M
If the DOI would allow FWS to determine or resolve issues using
scientific and other information, without interference during the
development of studies and documents. There are a number of cases in
Region 1 where DOI managers such as Manson have called biologists in
the field offices or even at home to question work, thus [averting] the
entire FWS structure and process.
079-R1-CA-M
Reducing or eliminating interference from DOI political appointees
(Craig Manson, etc.) and their special assistants (especially Julie
MacDonald).
084-R1-WA-M
Removing political appointees from USFWS science determinations,
098-R1-OR-S
Taking politics out of the decision making process.
100-R1-ID-S
Less direct involvement by DOI, minimize DOI changes to FWS Federal
Register publications.
102-R1-NV-S
Do not mix politics with biology.
104-R1-ID-S
Making decisions based on the best current science.
107-R1-OR-S
Doing work based on science rather than political commercial
interests and direction. We are not allowed to be honest and
forthright, we are expected to rubber stamp everything. I have 20 years
of federal service in this and this is the worst it has ever been.
108-R1-NV-S
Relieving managers and supervisors from the pressures of political
influence.
111-R1-CA-S
Stop letting the BIA lawyer Julie MacDonald rewrite USFWS documents
with no factual support.
112-R1-WA-S
USFWS is getting quite a bit of pressure from the DOI these days
and most bios I know expect that pressure level to increase over the
next four years. The Biologists I know who deal with controversial ESA
issues are striving to maintain a good administrative record pf the
recommendations that are brought forth to management. So that they can
provide that documentation if needed. It appears that at the DOI level,
politics comes into place and sometimes trumps science.
113-R1-HI-S
Removal of political influence at higher levels.
116-R1-OR-S
Support for conservation plans that allow time to actually go into
effect rather than changing or doing away with them as a result of
politics. In general, let science and not politics dictate decisions
more.
118-R1-CA-S
Not allowing political influence to drive the decision making
process.
126-R1-HI-M
Biologists being able to write their documents with our changes
because of politics and concern about upsetting some group. Just let us
do our jobs and don't tell us we don't know how to write valid
scientific documents because we do. That's what we were hired to do in
the first place.
129-R1-CA-S
Not allowing DOI to override a scientifically sound federal
register rule-making decision.
132-R1-WA-S
Science not politics.
137-R1-CA-S
Keeping politics out of biological decision making.
II: Increasing funding or resources
004-R1-CA-S
Provide technical staff with sufficient resources (bucks, bodies
and brains) to get the best possible product out.
040-R1-HI-S
Dramatically increase funding and permanent staff.
032-R1-CA-S
Allowing for more staff to complete the mission of the FWS. More
staffing would improve the turnaround time on projects and allow staff
to address litigious workload. Increase turnaround time would improve
the public perception of FWS.
020-R1-CA-M
Several important projects have and are under funded. Good science
takes time. More time requires more funding. Additional staff can
improve time deadlines-more staff requires more funding. The balance
between a well done project and making a deadline is funding.
028-R1-HI-S
We are also terribly under funded by the Bush Administration. We
are putting out fires and have no funds to do the real work of
recovery, implementing recovery actions or doing proactive
conservation.
045-R1-CA-S
Finding needs to be increased drastically; not cute. And you can't
recover species we don't invest some serious dollars into recovery and
reduce some of the threats.
046-R1-WA-S
A budget increase to fund more technical staff and distribute large
workload.
053-R1-WA-S
More resources and staff, we are overworked which leads to poor
morale and poor work performance. The resources are suffering because
ES can't do the job adequately.
101-R1-CA
Appropriations that meet work-load demands.
111-R1-CA-S
Hire more biologists to do all the work we are swamped with. We
cannot turn out good documents in the time allotted with current staff
levels.
113-R1-HI-S
Substantially increase funding.
118-R1-CA-S
Fully funding ecological services in order to proactively deal with
issues, instead of constantly reacting
127-R1-ID-M
Improved funding for research specific to the work of ecological
services. Sufficient staffs to thoroughly manage interpret and
integrate scientific information.
III: Devoting more attention to professional development, such as
access to scientific literature and time to review it.
062-R1-WA-S
Financial support for staff to participate in professional
societies and training.
114-R1-WA-S
More time to do research and more time to attend scientific
meetings. More time to publish; now I can't do anything but crank out
biological opinions.
118-R1-CA-S
Allowing scientists to fully keep abreast of the most recent
science literature.
122-R1-HI-S
Allowing biologists time to keep up with the scientific advances in
the field and time to use scientific techniques in conducting their
work. Also providing them with real opportunities for career
advancement based on scientific expertise, not supervisory.
124-R1-WA-S
Having the financial resources to keep up with scientific
developments (i.e., modeling, quantitative process) that we could
incorporate into our analysis.
132-R1-WA-S
Increased training and professional development
138-R1-OR-S
Assuring that ES staff are given opportunities to receive
appropriate training, attend scientific conventions and participate in
or conduct science research.
IV: Improving the quality of FWS management.
410-R1-OR-S
I think the service is being set up for a hall that is now being
directed from within. Reduced funding for ``white hot'' programs
(Partners, Jobs in the Woods), management changes to proposed
recovering plans to make ESA look like a terrible program, and
agreement by new appointees that ``ESA should be changed''.
012-R1-ID-S
Empowerment of staff biologists with funds to be directed to the
projects they are working on. The model for this is the Partners
Program and Candidate Species Program.
041-R1-WA-S
Hiring properly trained supervisors who have a background in
species conservation as well as business administration and
supervision.
082-R1-ID-M
Hiring management that has experience and interests in
conservation. Don't know how this can be accomplished as much of our
management in the last four years has been appointed or removed outside
the normal hiring practices.
094-R1-CA-S
Careful consideration of filling vacancies and promotions to place
competent, qualified people as supervisors and mid-level management.
There is way too much cronyism and nepotism placing ``friends'' in
higher grade positions that could have been filled by new blood off the
list.
099-R1-OR-S
More financial resources to have enough staff time to adequately
research, review and assess impacts to our trust resources.
104-R1-ID-S
Supervisors managing biologists should have a biology background.
115-R1-WA-S
Making sure supervisors and coordinators who review ESA and section
7 consultations actually know the law and our handbook for implementing
it (send them to mandatory training).
Foster an atmosphere where supervisors and coordinators don't seem
to flourish by keeping a low profile instead encourage risk taking
(when reasonable) and confidence and don't be afraid to make
politically unpopular decisions
125-R1-HI-S
Providing strong leadership in the USFWS from the top down. The
message we are receiving from the current administration is that our
agency is not important.
132-R1-WA-S
Continued development of meaningful partnerships
137-R1-CA-S
You need to recognize that what goes on in field offices can often
approach the ideal of what FWS mission is-but as it goes up the chain
getting closer to DOI, this ideal becomes lost in career/ego protection
for those in executive service.
V: Restoring the research arm to FWS (now with USGS)
057-R1-WA-S
Give us back out research branch. Improve and encourage training
and peer conferences.
084-R1-WA-M
Return of Biological Research Branch to the USFWS (away from the
USGS).
124-R1-WA-S
Recombining with USGS biological Resources Division.
133-R1-OR-M
Bring back our research agency.
VI: Restoring the conservation ethic to FWS.
411-R1-WA-S
I am discouraged that no matter what the project, somehow we will
ok it. We have to. We cannot stop a project.
409-R1-WA-
Slowing advancements past GS-12 without supervising, based on
proven scientific publishing's in peer-reviews journals.
002-R1-CA-S
FWS could actually follow the law and implement regulations. Stop
making excuses to the public, developers and politicians for doing
their job.
017-R1-OR-S
Emphasizing habitat needs for fish and wildlife above partnering or
political agenda. The USFWS can be proud of its history and those
leaders who shaped the high standards on refuges, migratory protection
and development of the ESA. The service needs to proudly defend the
existing FWS institutions and Acts and continue to recover habitat.
019-R1-NV-S
It is the unwillingness of decisions makers to do the right thing
for the resource. At the field level, my supervisor is faithful to the
resources but is frequently told to back off from the regional office
and DC.
025-R1-ID-S
By Balancing development concerns (short term) with long term
sustainability.
041-R1-WA-S
Giving nationwide guidance and policy on section 7 procedures that
emphasize and explain the portion of the regulations giving ``the
benefit of the doubt to the species.'' Giving standardized trainings on
section 7 procedures so all will implement it correctly.
043-R1-CA-S
Reducing retaliatory reprisals from management for doing complete
assessments.
044-R1-WA-S
Full support by immediate supervisors and management to ``err on
the side of the resources'' rather than with the project proposals.
069-R1-WA-S
Things can be improved by having an administration in Washington,
D.C. that supports what we do.
080-R1-CA-S
Upper management seems to have no backbone when it comes to
upholding the ESA.
117-R1-WA-S
An administration that values conservation that supports
environmental laws enacted by congress that balances issues of public
vs. commercial interests.
122-R1-HI-S
USFWS appears to value science rigor, but does not reward their
staff for their scientific expertise. I personally feel I have very
little opportunity for career advancement within FWS beyond my current
level (GS-12), despite carrying out extensive research on my own time
and publishing numerous scientific papers. I have reached the end of
the line and am wondering if I mistakenly gave up my scientific career.
129-R1-CA-S
Focusing more attention on relationship with other state and public
agencies, groups and offices.
137-R1-CA-S
Recognizing that we are beyond ``striking a balance'' because we
are dealing with threatened and endangered species--already out of
balance. To balance need to lean more on the side of conservation.
V1I: Increasing the transparency of scientific decisions, through, for
example, peer review.
018-R1-WA-S
Allowing the science basis for decisions to be clear and available
to the public
027-R1-CA-S
Please look closely at what is happening to the Recovery
Implementation money. In our office about one tenth of the money makes
it to the Recovery Branch and about one quarter of that makes it to
recovery implementation--in spite of the fact that contracts are lined
up for spending the money on recovery. Where does the rest of the money
go? Is this happening in other offices?
029-R1-HI-S
For conservation to be effective, we need society to better
understand the negative ramifications of global habitat destruction and
degradations. We know enough
Now to know we need to reverse these trends but society ignores it.
062-R1-WA-S
More active role in conservation of non-listed species-> FWCA
067-R1-CA-S
We are also often at the mercy of peer-reviewed academic science,
which generally sucks.
084-R1-WA-M
Improved use of external peer review.
088-R1-NV-S
Increased coordination between USFWS Fisheries and the USFWS
Ecological Services.
090-R1-ID-S
Internal steps to increase peer review and transparency in general.
091-R1-ID-S
Greater transparency in justification for making biological
decisions. More public awareness of the decision making process.
101-R1-CA
Getting rid of critical habitat would be big help. It is too big of
a drain on resources fro real little value.
117-R1-WA-S
What I have seen in the last 4 years is an increase in bureaucratic
red tape, mindless administrative tasks, overturning of science-based
decisions with our really making those decisions transparent to the
public.
VIII: Decreasing control of contractors and client agencies over
scientific conclusions.
411-R1-WA-S
Working with most (not all) tribes is a problem. They know that if
they grumble long enough-that political pressure will ease
restrictions.
408-R1-CA-M
We're becoming a third world country in that our resources can be
bought by commercial interest, no mater what the law.
013-R1-ID-S
I feel some of the change toward involving public and stake holders
has improved the quality of our recovery planning documents.
074-R1-OR-S
Producing scientific work. Not by using other agencies' scientific
research.
135-R1-CA-S
By having our entire budget come directly to the Service and not
through another agency such as BOR. When parts of our budget come
through BOR (Bureau of Reclamation) the only items that receive
attention are those of interest to BOR and their political friends.
136-R1-CA-S
Focusing on conservation strategies first and deadline second.
X: Settling or changing the role of lawsuits.
008-R1-OR-S
If the environmental groups stopped suing us and imposing
ridiculous timeframes to make listing and critical habitat
determinations. We are not given enough time or funding to evaluate and
make scientific decisions because of court determined deadlines which,
is counter productive to the environmentalist goals of protecting
species.
060-R1-OR-S
Getting back to the spirit of the ESA rather than being paralyzed
by the process of ESA. (For example, the recovery work is insignificant
compared to the amount of time and money used to defend lawsuits.
110-R1-CA-S
Ensure Recovery money is spent appropriately.
136-R1-CA-S
Focusing more one settling lawsuits than fighting against them. We
need to get the funds to take care of our listing critical habitat
backlog so we're now in perpetual crisis mode.
XI: Creating a career ladder for agency scientists.
120-R1-HI-M
Develop a two track structure at FWS:
One track is management and administration.
One track is science analysis.
The scientific track analyzes the environmental and biological
issues and stays current with the science literature and perspectives.
The admin track deals with policy. Both tracks would write independent
final analyses that are part of the admin record.
133-R1-OR-M
Create an advancement path based on scientific research.
XII: Miscellaneous.
006-R1-CA-S
Ecological Services doesn't produce scientific work. Opinions are
not based on science/data. Millions of dollars are wasted yearly on
well-intentions but poorly designed/implemented/analyzed projects that
don't get us information or recover species. Supervisors need to know
they are tasking staff with things they can't do. This also leads to
poorly conducted contract work. Because staff are simply not trained in
experimental design and estimation of techniques.
REGION 2 (Southwest: AZ, NM, TX, OK)
I: Removing politics/political influence over scientific decisions
143-R2-OK-S
Reduce politically-based interference with agency scientists and
scientific decisions by requiring challenges to be made through formal
channels and to be based on science or other applicable grounds, not
mere greed.
148-R2-TX-M
Decreasing political influence including the pressure and
willingness of upper and mid-level managers to respond to it.
151-R2-AZ-S
Keeping it scientific and biological when the decisions require it.
Biological opinions are supposed to be based on biology, not political
expediency or [cowering] to some user group.
160-R2-OK-S
Less influence by political staff
163-R2-AZ-M
Biological, not politically based decisions. Being able and
encouraged to implement the real intent of laws, ESA, CWA, NEPA etc.
not implementation based on needs of industry.
164-R2-AZ-M
Getting rid of Julie McDonald.
167-R2-AZ-S
Providing rigorous documentation of scientific decisions is already
required. I wish managers would provide similar documentation, (phone
records, and memos to file) of those when marching orders are given by
a member of congress, an appointee, an RD etc. In other words, it
should be documented when a scientific process is usurped by political
considerations
170-R2-NM-S
Allowing biologists to make biological assessments before the
injections of politics.
171-R2-NM-M
Allowing scientific rather than political decisions.
II: Increasing funding and resources.
143-R2-OK-S
Increase funding for all ES activities, but especially those less
popular with special interests, including ESA, see 404 CWA and
Environmental Contaminants.
394-R2-NM-M
Having adequate staff and providing adequate funding for all FWS
program mandates.
159-R2-OK-M
Provisions of more adequate staff and funding levels.
178-R2-TX-M
Better funding, filling vacancies, money to obtain peer review.
III: Devoting more attention to professional development, such as
access to scientific literature and time to review it.
151-R2-OK-S
Greater staffing levels would allow more training, more time to
keep up with literature and more time spent producing quality products.
I have a stack of literature 18'' high that needs to be logged, read
and filed!
152-R2-TX
Stay up to date.
169-R2-AZ-S
Allowing and paying for scientists to remain current in their
specialty field.
IV: Improving the quality of management.
140-R2-TX-S
Removing fat at the top of the bureaucratic food chain, which
increases distortions of goals or objectives both up and down the
chain.
158-R2-TX-S
The Texas state Admin is commonly referred to by the staff as Dr.
Evil; his underling is Minnie Me: No integrity or leadership.
170-R2-NM-S
In region 2, the regional director is more a tuned with the Cattle
Growers Association than his own ES biologists.
173-R2-NM-M
After 4 years they have selected managers who will parrot their
beliefs as a result with few exceptions the entire echelon of FWS are
not advocates for the fish and wildlife.
VI: Restoring the conservation ethic to FWS.
163-R2-AZ-M
We need to get back to being advocates for the fish and wildlife
resources, not advocates of development and big industry.
II: Increasing the transparency of scientific decisions, through, for
example, peer review.
158-R2-TX-S
Quit giving lip service to peer review and working with others--
start doing it.
IX: Expanding use of partnerships.
175-R2-OK-S
Most importantly, the Partners for Fish and Wildlife program is the
only way to affect listed and declining species on private lands. This
program is severely under funded and still too focused on waterfowl and
wetlands. This program is the only way to ``shelter'' recovery money
from litigious HCP suits, etc.
REGION 3 (Great Lakes: MN, IA, IL, IN, WI, MI, OH, MO)
I: Removing politics/political influence over scientific decisions
181-R3-MN-S
Re-instating ecological services field office oversights on
restoration grant programs. More money is now funneled into programs
such as private stewardship grants which are administered by non-
biologist bureaucrats in the regional office who give out the money
without sufficient scientific oversight or accountability to project
effectiveness.
182-R3-WI-S
Political influence has been moving downward ever since and it is a
corrosive, negative force on environmental agencies.
II: Increasing funding or resources.
181-R3-MN-S
Filling positions vacated in the past four years. The work load is
the same or greater, but there are fewer people due to budget cuts
III: Devoting more attention to professional development, such as
access to scientific literature and time to review it.
179-R3-WI-S
Encouraging scientists to keep abreast of scientific information
(e.g., Membership in professional societies, pay for them to attend
prof meetings.) and allowing scientists to do their job-make sure they
can focus on getting the science right before they are bombarded with
the social, political and economic angles that come with each issue.
181-R3-MN-S
Encouraging participation actively in professional societies (we
currently have no resources for this and must do it at our own time and
expense). Reinstating our training budget, this is now laughably small.
We are priced out of most technical training, unless we do it at our
own time/ expense, providing access to current scientific journals
(hard to do now unless there is a large university in town.
185-R3-MI-M
Here in ES field station we are under pressure to respond to issues
on a timely basis and have to prioritize issues. This type of
environment is not conducive to research (which requires large blocks
of uninterrupted time and access to facilities and technicians.
V: Restoring the research arm of FWS (now with USGS).
182-R3-WI-S
Restoring research as a function of USFWS--loss of Region 8
crippled us.
185-R3-MI-M
Give us back our research arm! USGS-BRD should be part of USFWS so
that we can better integrate applied needs in the field with the
research expertise of scientists who do research full-time.
VIII: Decreasing control of contractors and client agencies over
scientific conclusions.
180-R3-WI-S
Allowing ES staffs to more directly participate in development and
implementation if surveys and studies related to the End Spp etc.
rather than farm everything out to DNR and contractors.
184-R3-IN-S
Professionalism is downplayed at ES in favor of cooperation and
diplomacy. Washington prefers to look at the big pictures but in my
opinion it's the wrong big picture.
REGION 4 (Southeast: GA, AL, AR, FL, KY, LA, MS, TN, NC, SC, PR)
I: Removing politics/political influence over scientific decisions
191-R4-FL-S
Too many managers (gs-13) are too political (easily swayed by calls
from regional offices and or politicians.) to make the correct
decisions based on science.
192-R4-AR-S
Have politicians keep their noses out of things they don't know
anything about. Have them stop meddling with changes to the endangered
species act for political or monetary gain.
195-R4-TN-S
Field offices have highly qualified biologists who can make
decisions and findings about species and habitats based on sound
science. These findings are based on biological and ecological needs of
the species and are but one facet to be considered in making a final
decision. Wildlife laws have provisions and procedures for considering
non-biological issues. Bottom line: Let ES biologists do their jobs;
then incorporate their findings in the decision-making process as
provided for in federal laws. Don't short cut around established
procedures.
198-R4-FL-S
Making decisions based upon actual science and true effects to
listed species after a full, complete and rigorous analysis of project
impacts. Findings need to be based upon biology and ecology, not what
is politically acceptable or tolerable to the applicants, politicians,
developers and public.
213-R4-FL-S
Taking the politics out of the scientific decision making process;
taking the fear and career intimidation off the backs of the
biologists; promoting professionalism and integrity among the
scientists.
218-R4-FL-S
Better support from Field Supervisors, Regional Office Line
Supervisors and Washington Staff for Field Biologists instead of
allowing politics or their career aspirations to override resources
decisions.
222-R4-FL-S
Isolating FWS from politics.
226-R4-LA-S
Not watering down decisions made by staff by caving into political
pressure!!!
236-R4-FL-S
Better separation of political appointees from decision making
within FWS.
254-R4-NC-S
Removing politics and economics from the equation.
II: Increasing funding or resources.
194-R4-AL-M
As budgets fall and salaries benefits, solicitor cost is almost
everyone becomes desk jockey.
203-R4-KY-S
Providing adequate staff, funding and support for the biologists to
do our job.
204-R4-FL-S
Additional personnel and more appropriate/better use of experienced
staff on critical issues.
218-R4-FL-S
Additional Staff to allow more in depth study on individual
projects consultations. Workload is so heavy that decisions must be
made without complete review of information.
225-R4-MS-S
Increase staffing levels. Instead of two people covering 32
counties, at least double that so four folks could cover 8 counties.
More staff = more proactive work at county level before more land
clearing starts.
239-R4-NC-S
Improved funding.
236-R4-FL-S
Adequate funding from congress and the administration.
242-R4-MS-S
Adequately funding the programs involved.
262-R4-FL-S
More staff resources to tackle the heavy work-load.
III: Devoting more attention to professional development, such as
access to scientific literature and time to review it.
187-R4-FL-S
More support from agency staff to participate and interact with
professionals, organizations, agency researchers, and university
researchers. Also funding to attend organize and influence professional
society workshops.
259-R4-GA-S
Scientific and policy documents cannot keep pace with the barrage
of impacts. Therefore, biologists spend almost all of their time
fulfilling permit applications and have no time to monitor whether or
not recommendations or requirements are implemented. This disparity
means that true impacts to species are not fully understood by
biologists
260-R4-FL-S
Each biologist is over-worked, not allowing for quality work and
more time is spent on administration paper work every year.
225-R4-FL-M
Our office doesn't really do research. We could benefit by
subscribing to a citation database soft ware or having annual
scientific needs assessments and improve cooperation from the USGS.
201-R4-FL-S
Better communication and information sharing, providing journal
articles to staff.
211-R4-NC-S
Enhancing access to peer reviewed literature via internet ( the
inter library loan is often unavailable or too slow to meet timelines
for projects). Increasing funds to direct applied research targeting
project ``review issues (especially to thresholds of environmental
change and resulting impacts to listed species.) Evaluation of
standards within the Agency, including better support/backing of
scientific staff and recognition of time to collect, synthesize and
interpret best available info.
243-R4-MS-S
Increase collaborative studies with university and state fish and
wild life agencies and other federal agencies. This would ensure that
study resultions would be more accepted by the scientific community.
IV: Improving the quality of management.
401-R4-GA-S
I feel that much of my time is spent on clerical type duties
because management doesn't have the time to analyze efficiency of our
operation.
199-R4-FL-M
Reducing rather than penalizing integrity.
248-R4-FL-S
I believe that the real problem with the agency lies with upper
level management. Most of the time the fundamental science used to
formulate biological opinions is sound and the lead biologist submit a
quality product to the supervisor. Upper level management then buckles
under political pressure and the recommendations/biological opinion
initially submitted is revised and watered down to all the permit to be
granted.
201-R4-FL-S
Removal of ``air of fear'' that staff experience just from asking
questions of top management-even those non-scientific questions. I was
once told after a staff meeting that it is not in my best interest to
put the Field Supervisor ``on the spot'' with questions. In the 2 years
following I have not asked any more questions even though I am unsure
about issues in my office--for fear of reprisals
253-R4-FL-S
Remove [Vero Beach Field Supervisor Jay] Slack.
215-R4-FL-MS
Could be best improved by managers at all levels who are willing to
listen; set aside political influences for ``a moment'', consistently
interact with staff, remove biases toward researchers, empower staff,
etc.
240-R4-MS-S
Reduce the RO supervisory staff and increase the technical staff.
241-R4-MS-S
Favoritism when hiring should be eliminated (climbers are bad
scientists).
VI: Restoring the conservation ethic to FWS.
206-R4-FL-S
Starting at the executive office and working downwards electing/
appointing decision makers with a commitment to conservation ethic and
support for endangered species recovery.
225-R4-MS-S
Reward management for making tough decisions on the side of the
species not on the political side that favors development.
228-R4-GA-S
Promoting the priority of getting out into the field to learn the
ecosystems
239-R4-NC-S
More backbone and less dog and pony show-more on the ground action.
VII: Increasing the transparency of scientific decisions, through, for
example, peer review.
209-R4-AR-S
Providing more regulatory authority and law enforcement
capabilities in other programs such as CWA, MBTA and ESA.
248-R4-FL-S
Better peer-review.
X: Settling or changing the role of lawsuits.
258-R4-FL-S
Not having the workload be directed by litigations.
XI: Creating a career ladder for agency scientists.
234-R4-FL-S
Developing employees instead of losing them.
XII: Miscellaneous.
194-R4-AL-M
More LE and ESA, fills, contaminants, water quality issues. Greater
cooperation by the EPA and state environmental quality division. The
EPA is totally uncooperative in CWA; state division is probably the
worst in the nation.
234-R4-FL-S
Consistent and accountable application of funds.
239-R4-NC-S
Stopping the USFWS from raising and stocking exotic species,
particularly fish.
246-R4-FL-M
Undergrad and Grad schools need to offer Ethics courses.
REGION 5 (Northeast: ME, DE, RI, NY, MD, NJ, WV, PA, VA, NH, MA, VT)
I: Removing politics/political influence over scientific decisions
264-R5-NH-S
Getting the political appointees off our backs and let us do our
jobs.
275-R5-ME-S
Keeping science and politics totally separate. Why can't we be
honest when science points in one direction but political reality
results in USFWS making a decision to do otherwise? Morale and
credibility will improve if we are honest rather than trying to twist
science to make politicians happy.
293-R5-MD-S
A top-down emphasis put on quality science (and the willingness to
listen to it!). As it stands, FWS regional HQ, DOI and White House
leadership are so hostile to our mission that they will subvert, spin
or even illegitimize our findings. Without changing the leadership,
having this discussion is probably futile.
276-R5-PA-M
Having regional office and Washington office staff who have the
courage and integrity to stand up to political pressure and commercial/
business interests. It is at this level that scientific/biological
determinations by field staff are not supported or are over-turned.
Contrary to what the administration says--the issue is not peer
review or failure to use ``good science.'' The ``goodness'' of our
science is only questioned when it yields an answer that is in conflict
with a commercial or political interest.
278-R5-VA-M
Incorporate commercial/economic and political concerns in making
final recommendations and decisions, but don't manipulate the science
to minimize or erase competing environmental concerns. (emphasis in
original)
281-R5-VA-S
That the FWS scientific findings drive regulation and action for
species and habitat rather than be altered due to political influence
from within DOI.
II: Increasing funding or resources.
398-R5-MD-S
If ecological service offices were given actual project money, we
could spend more time doing projects rather than time spent trying to
find ways to pay for staff/projects.
263-R5-NH-M
More discretionary funding to contract for targeted or focused
scientific studies. The money is needed early, when the issue concern
is first identified, not later when it has reached crisis stage or we
are facing litigation.
266-R5-PA-S
Adequate funding base programs so biologists have necessary time to
perform the job they have been trained to do (as opposed to chasing
soft dollars to keep program alive)
270-R5-VA-S
Increase the number of field biologists and decrease the number of
upper management. Too many highly paid supervisors that don't work
directly on species conservation or work in the field. In R5 we lost
field staff in 2004 while gaining several upper level positions. In my
office they are applying for raises for all supervisors.
287-R5-NJ-S
Increasing staffing and funding to allow appropriate time and
attention to the issues related to project review, recovery, and
candidate assessment.
282-R5-ME-M
Providing adequate funding and staffing levels.
Continued budget cuts affect the long-term mission of the Service
to adequately protection wildlife and habitat.
283-R5-DE-S
More funding--offices are chronically under-staffed; we're expected
to do more with less; the best, most dedicated biologists are over-
worked and vulnerable to burn-out; when you're over-worked, quality of
work tends to suffer.
III: Devoting more attention to professional development, such as
access to scientific literature and time to review it.
398-R5-MD-S
Promoting more participation in professional societies.
267-R5-PA-S
Sufficient funding and authorization for scientists to attend at
least one professional meeting per year.
394-R5-MD-M
Providing more technical courses at NCTC instead of a slew of
touchy-feely ones.
284-R5-ME-S
Better access to and collaboration with USGS biologists. Better
relationships with universities and the Coop Program.
IV: Improving quality of management.
271-R5-NJ
ES program has been hurt by too many regional office appointees
with lack of experience and no field office work.
273-R5-VA-S
Holding management accountable and implement consequences to them
for poor performance.
279-R5-VA-M
Better leadership. The Service creates excellent staff biologists,
but we do not groom leaders. Good biologists are hired for supervisory
positions with little regard for supervisory skills.
V: Restoring the research arm of FWS (now with USGS).
399-R5-ME-S
Restoring research and scientific investigation capabilities to the
service.
394-R5-MD-M
Giving back our research program from USGS.
287-R5-NJ-S
Returning our research arm which was transferred to USGS decreasing
coordination with research scientists.
VI: Restoring the conservation ethic to FWS.
265-R5-NY-S
Using the precautionary principle as the norm rather than having
the burden of proof lie with the resource agency.
288-R5-ME-S
Political decisions should be made at the HQ level, not at the
regional or field level.
286-R5-NJ-S
Improving support of an [sic] field offices by the Regional Office.
285-R5-PA-M
By learning that at some point, it may be necessary to say ``no''
(i.e., not everything is ``win-win'').
VII: Increasing the transparency of scientific decisions, through, for
example, peer review.
284-R5-ME-S
State/regional peer review teams to review Service programs.
281-R5-VA-S
Allowing the science to speak for itself and be available to the
public.
VIII: Decreasing control of contractors and client agencies over
scientific conclusions.
267-R5-PA-S
Support from politically appointed administrators on issues
involving other federal agencies as well as state agencies.
XI: Creating a career ladder for agency scientists.
293-R5-MD-S
Inclusion of scientist-only positions within [Ecological Services].
REGION 6 (Rocky Mountain Plains: CO, MT, KS, NE, ND, SD, UT, WY)
I: Removing politics/political influence over scientific decisions
302-R6-WY-S
Allowing us to do our jobs without political influence.
304-R6-NE-S
Conclusions drawn by Field Office; scientifically sound and based
on best scientific data available; must be supported by [Regional
Office] and [Washington Office], not patently dismissed due to
inconvenience and inconsistency with current political whims.
305-R6-WY-S
Eliminate the control that DOI political appointees have over the
scientific decision making process. Decisions have to be allowed to be
made based on the best science available--there is far too much
influence by DOI political appointees, state and local government
elected officials and commercial interests.
308-R6-NE-M
Prevent political appointees from re-writing agency policies/
guidances that weaken our ability to properly administer federal
environmental laws.
311-R6-CO-S
Keeping politics out of the scientific investigations.
315-R6-UT-M
Non-interference with political appointees, from our national
directorate to DOI and CEQ. Our agency does an excellent and scientific
and protective job to the best of its ability given political
intervention and public indifference.
316-R6-UT-S
Removing politics from the process.
325-R6-WY-S
Having the best scientific data speak for itself. Too often, the
scientific data and the recommendations of field employees are
dismissed by higher-ups and by those not wanting to make waves or go
against the wishes of the current administration.
327-R6-MT-M
Reducing the direct intervention by Department of the Interior
political Appointees who often overturn the findings of scientific
documents and replace them with political determinations.
332-R6-ND-M
For appointed positions, appointing agency career professionals,
rather than politically-connected lawyers, judges and industry
lobbyists whose principle agenda is the dismantling of legitimate
agency missions, budgets and workforce.
333-R6-NE-M
The current Administration is having a profound negative impact on
the ability of the USFWS to do its job through political influence and
budget reductions to Ecological Services Program areas.
II: Increasing funding or resources.
302-R6-WY-S
Adequate funding!!! (emphasis in original)
305-R6-WY-S
Provide adequate funding and resources.
310-R6-CO-S
Provide sufficient funding to deal with the mandates as directed by
Congress.
312-R6-WY-S
Funding at an appropriate level to handled the current workload
with sound scientific survey methods for gathering information on
listed and sensitive species.
324-R6-MT-S
More staff, so we'd have more time to devote to writing our
documents.
III: Devoting more attention to professional development, such as
access to scientific literature and time to review it.
311-R6-CO-S
Providing funds to keep staff up to date on current scientific
findings and training.
318-R6-WY-S
More funding to hire more biologists which would allow biologists
to undertake more scientific work and devote more time to this part of
the position.
319-R6-MT-S
A lot of our ``best available science'' is quickly becoming
outdated--funding is needed to help support new research.
IV: Improving quality of management.
300-R6-SD-S
Elimination of Regional Offices--they provide minimal value to
field offices while consuming huge resources for high graded--often
inexperienced or incapable employees.
317-R6-KS-S
Reduce layers of management. We could trim one-fourth to one-third
of the Washington and Regional office staffs and have absolutely no
negative effect on the biological work of the agency. Management used
to exist to serve the filed staff, but this has reversed in the past 5-
10 years. They take the money, we do the work, they make decisions
regardless of what our data show.
396-R6-MT-M
Stronger leadership qualities in Field Supervisors, and other
supervisors, in holding field bios to use of best science, and correct
interpretation of scientific research results. Too many field bios are
poorly trained and get emotionally attached to species and/or
conservation issues. Those bios use ``err on side of species'' to
justify ludicrous rationales, requirements and they waste precious
resource dollars. Damage credibility of USFWS biologists.
More training for biologists and managers in ES law, regulation and
POLICY. Many field biologists don't have a clue as to what these cover
or what or how or where they evolved.
V: Restoring the research arm of FWS (now with USGS).
316-R6-UT-S
Giving us back our research arm--BRD.
VI: Restoring the conservation ethic to FWS.
315-R6-UT-M
We need to raise public awareness of the purpose of the laws we are
charged to uphold (NOT just ESA) and garner their support against the
saboteurs currently in power! Public resources are being sacrificed for
private gain--irreversible losses. Hard to keep protecting the public's
interests in public's resources when they don't care or are
misinformed!! (emphasis in original)
334-R6-CO-S
Instill an organizational climate that encourages non-SES employees
to aggressively engage SES and political appointees in the application
and interpretation of scientific principles, without fear of either
short term or long term (career) retribution.
413-R6-NE-M
Removing the political oversight at the Departmental level that has
rendered the U.S. Fish and Wildlife Service to a position that is no
longer effective in protecting fish and wildlife resources.
VII: Increasing the transparency of scientific decisions, through, for
example, peer review.
303-R6-NE-S
FOIA, FOIA, FOIA! Keep our agency honest through whatever means
available.
334-R6-CO-S
Demonstrate to the public that the approaches/principles used by
FWS to assess risk to declining species are similar to those used by
other disciplines (e.g., bankers and farmers) to assess future risk and
conserve their trust resources.
XI: Creating a career ladder for agency scientists.
330-R6-NE-S
Currently, hiring and promotions are based on one's knowledge in
law and policy. Little consideration is given to level of education or
publication history. This is evident as Bachelor of Science graduates
fill high ranking positions. This failure is occurring at the
Directorate level where one Regional Director does not have a
scientific background and it is evident in her lack of support for her
agency's mission.
XII: Miscellaneous
303-R6-NE-S
Get us real whistleblower protection through Congress.
334-R6-CO-S
Require annual training of staff level biologists on ``scientific
principle.'' Now, training is ``optional'' and most ES training courses
emphasize process.
336-R6-MT-M
Hiring younger biologists who have more advanced degree and more
modern skills.
REGION 7 (Alaska)
I: Removing politics/political influence over scientific decisions
357-R7-Fairbanks-S
Keeping the politics out of science. Allowing biologists to do
their jobs.
351-R7-Anchorage-S
Remove DOI political appointees from the review and approval
process.
349-R7-Fairbanks-M
I have been and continue to be proud of the job the USFW does with
respect to conserving fish and wildlife. The clear problem is with this
Administration's political appointees. Recently, DOI officials have
forced changes in Service documents, and worse, they have forced upper-
level mangers to say things that re incorrect and not reflective of the
agency's view on an issue. This, I believe, goes too far. It's one
thing for the Department to dismiss our recommendations, it's quite
another to be forced (under veiled threat of removal) to say something
that is counter our best professional judgment.
344-R7-Anchorage-S
Biologists at lower levels are prevented from releasing information
that might hurt the pro-development interests.
340-R7-Fairbanks-S
Removing the influence of DOI political appointees in producing
scientific documents.
339-R7-Juneau-M
Use science/biology, not politics.
403-R7-Juneau-M
Removing oversight of political appointees, such as the DOI Alaska
Issues appointees, who review our draft letters and change them before
career employees can sign them.
402-R7-Anchorage-M
Allowing us to do our jobs without political interference.
II: Increasing funding or resources.
361-R7-Anchorage-S
Staff resources are dwindling in Alaska--everyone is overworked and
burned out!!!
346-R7-Juneau-S
Steady funding streams (more than 1 year budget cycle) to develop
meaningful trend analysis.
337-R7-Fairbanks-S
Resources to use modern tools for managing and retrieving/analyzing
information--GIS, databases, computer-assisted modeling of populations.
IV: Improving quality of management.
361-R7-Anchorage-S
Having a Regional Directorate willing to stand up to the ACOE by
approving 404 denials recommended by ES staff. We have been told to run
any potential ``denials'' through the Assistant RO for ``pre-
approval''--which are then not granted for release--we have to rewrite
the letters.
352-R7-Anchorage-M
Having the Director be a career position not a political appointee.
VI: Restoring the conservation ethic to FWS.
344-R7-Anchorage-S
There is a culture of fear of retaliation in mid-level management.
If the manager were to speak out for resources, they fear loss of jobs
or funding for their programs. (So they go into ``duck&cover'' mode and
wait for the politics to change.)
VIII: Decreasing control of contractors and client agencies over
scientific conclusions.
357-R7-Fairbanks-S
Not vetting comment letters (drafts) before the state, private
industry, other agencies--asking for their input and then changing our
letter to suit their needs.
XII: Miscellaneous
343-R7-Anchorage-S
For endangered species program: Making designation of critical
habitat optional (not mandatory) thus decreasing multitudinous
lawsuits.
337-R7-Fairbanks-S
Training in decision-making processes that recognize scientific
uncertainty. Biologists trained to evaluate discrete issues using
standard statistical approaches are ill-equipped to deal with complex
issues for which too little information is available.
REGION UNKNOWN
I: Removing politics/political influence over scientific decisions
383-RU-S
Leaving politics out of ESA decisions.
374-RU-S
Less intervention from political appointees--of course that would
require a revamp of the system and greater level of integrity
(willingness to suffer professionally) at mid-level management levels.
365-RU-S
Excluding political powerbrokers from intimidating Service
scientists.
II: Increasing funding or resources.
393-RU-S
Receiving support required, including funding.
386-RU-S
Adequate funding to assess resources to make good evaluations.
366-RU-S
Increasing the number of staff biologist to handle an ever
increasing workload.
IV: Improving quality of management.
378-RU-S
Having a Director willing and able to stand up to Interior would
help spread back bone to the Regional Directorates. Right now our
Direction is so worthless none of our management can expect support.
V: Restoring the research arm of FWS (now with USGS).
363-RU-S
Long-term research and population monitoring is almost non-existent
in the non-governmental scientific sphere, and has become rare with
government scientists. Ecological Services does not have adequate staff
to do this work and funding and personnel has dropped severely--
especially after Region 8 became USGS-BRD. Bring back the scientific
staff and dedicate them to long-term management related research.
VI: Restoring the conservation ethic to FWS.
387-RU-S
Focusing in a more comprehensive manner on the needs of all rare
species and their stressors.
386-RU-S
Movement away from GPRA based acres as the only method of
evaluation. We are neglecting the animals.
VII: Increasing the transparency of scientific decisions, through, for
example, peer review.
367-RU-S
Placing much more scrutiny on the decision-making process between
the draft scientific document and the final decision. The work is great
until it hits the supervisory chain, then things are dropped, changed,
altered (usually without written record) and then finalized with
dismissive responses to concerns.
VIII: Decreasing control of contractors and client agencies over
scientific conclusions.
386-RU-S
Careful scrutiny of programs that seek outside funding to perform
work that should be done by consulting firms. Due to underfunding and
poor management of existing funds, we are becoming a consulting firm.
______
The Chairman. Thank you, ladies and gentlemen.
Let me ask my first question to Deputy Secretary Scarlett
in regard to the IG report. In his testimony, Mr. Ruch just
now, the Public Employees for Environmental Responsibility,
points out that the Interior Department has ``yet to condemn
the conduct of the recently resigned Julie MacDonald.''
Mr. Ruch also says that the Interior Department should
correct Ms. MacDonald's scientific misrepresentations that have
been identified by the Inspector General.
My question is, has the Department submitted a formal
response to the Inspector General?
Ms. Scarlett. There has been a verbal response to the IG,
and the IG provides us with a form. I believe that form was
being submitted to him yesterday or today. But I could go
beyond that. I will say that----
The Chairman. Yes. My question is, do you expect to clear
the air on this matter?
Ms. Scarlett. Ms. MacDonald has now resigned. We went
through a lengthy process. I personally received the IG report,
gave it to the Assistant Secretary for Fish, Wildlife and
Parks, who reviewed it thoroughly, did fact checking and follow
up, and subsequently provided to a board that Secretary
Kempthorne has created, an accountability board, to further
review those findings. Upon the completion of that effort, Ms.
MacDonald did resign.
We view the details of Ms. MacDonald's matter as a
personnel matter. However, I will say from a matter of policy
that Secretary Kempthorne is strongly, strongly supportive of
accountability. He has gone to the Government Ethics Office and
asked for a list of best practices. We are methodically going
through the Department to implement all of those at 100 percent
level. So from a policy standpoint, yes, we expect an
accountable, professional staff that at all times is respectful
and utilizes science with integrity.
The Chairman. So do you expect to take corrective action to
repair the damage created by Ms. MacDonald to the Interior
Department itself?
Ms. Scarlett. This is the first time I had heard that
particular suggestion with respect to reviewing the science.
Let me say again that several steps have already been taken to
further ensure that the Department is, one, that is accountable
and operates with integrity.
By the way, I want to reenforce that I believe that the
Department is generally with both career and non-career
employees one of the highest professional standards, but we
have created an accountability board to further ensure that all
actions--that people are held accountable for actions. We have,
as I said, created an ethics process whereby we are putting in
place 80 ethics best practices. Many of them we already had
underway, but we are making sure that we have all 80 of those
best practices.
With respect to the science itself, working with the Fish
and Wildlife Service we continue to strive to ensure that the
best science is undertaken to inform the decisions that we
take. Many of those decisions are ongoing, and we will continue
to review them, review the science, and ensure that that
science is brought to bear in those decisions.
The Chairman. Let me ask the rest of the panel to respond
to the Deputy Secretary's response just now, beginning with
you, Mr. Ruch.
Mr. Ruch. This is the first we had heard that there was an
accountability board identifying 80 best practices, and we are
curious as to whether or not they are sort of bigger than a
bread box.
We noted in our testimony that the Department of the
Interior had already adopted a Code of Scientific Ethics but
never bothered to incorporate it into its manuals. We are not
sure who it applies to, but it appeared it doesn't apply to
political appointees.
We are not at all clear, based upon those statements, that
the Department of the Interior is distancing itself from the
conduct of Ms. MacDonald or is prepared to offer any assurances
to its professional staff that such interference will not be
tolerated in the future.
The Chairman. Dr. Grifo.
Ms. Grifo. Thank you. Given the context of the political
interference that we are documenting across agencies, across
departments, it is hard for us to take this seriously until we
see what this really looks like. If there is this
accountability board, could we have them on the web so that we
can see who they are? Could we have perhaps, you know,
nonprofits and other groups represented on this accountability
board?
These 80 best practices, you know, could we have comment
and review of those from beyond the agency or the Department?
I mean, I think these are important first steps, but the
proof will be in the pudding. I mean, when we see the details,
we will be able to make a final judgment.
The Chairman. Jamie.
Ms. Clark. Well, at a top level, it is interesting that the
Department is forming an accountability board, and that they,
you know, are very concerned about the manipulation of science,
and concerned about Julie MacDonald. But what I still find very
troubling is that if they don't count suppression or
manipulation of science, and frankly, why did they leave Julie
MacDonald in place for so long. Her legacy, if you will, goes
back over many species that you heard both Mr. Ruch and Dr.
Grifo lay out.
And so whether it is the Code of Science Ethics, which I
have read, and I agree with, but there is a glaring omission,
as I understand it in talking to career folks, in that
political appointees were specifically excluded from that. So
if you create this wall for career employees to be have one way
and political appointees to behave another, then it is ripe for
problems that we are seeing now.
The Chairman. Thank you. The Chair does have further
questions, but noting my time has expired and noting that there
are 14 Democrats here and four Republicans, I do want to yield
at this time to the Ranking Minority Member for his questions.
Mr. Sali. Thank you, Mr. Chairman.
Ms. Clark, you would agree with me that the goal of the
Endangered Species Act is to have zero species become extinct?
Ms. Clark. I would agree with you that the goal of the
Endangered Species Act is to conserve threatened or endangered
species and protect the habitat they depend on, and as an
ultimate goal, you are right. As a country, we should not allow
and condone the extinction of species.
Mr. Sali. Ms. Grifo, you would agree with that as well?
Ms. Grifo. Yes, I would.
Mr. Sali. OK. In terms of science, leaving apart the
requirements of the Endangered Species Act, what is the
acceptable rate of extinction of species, Ms. Clark?
Ms. Clark. I think that that is a bit of red herring. I
don't think that there is an acceptable ``level'' of risk for
species. I think that we deal with these issues one at a time,
and I don't think any scientist or policy person would agree
that there is a ``right'' number for losing creatures on this
earth.
Mr. Sali. So you believe that the scientific goal should be
zero, the same as it is under the legal standard of the
Endangered Species Act. Is that correct?
Ms. Clark. Well, again, I didn't agree with you straight
out. The way that you represented the goal of the Endangered
Species Act is ``zero'' extinction. I represented it
differently in that the goal, the purpose of the Endangered
Species Act is to provide for the conservation of species on
the brink and to protect their habitat. That is different than
the way that you characterized it.
Mr. Sali. Well, Ms. Grifo, I guess I would ask you. What is
your view in terms of science? Is there an acceptable rate of
extinction of species?
Ms. Grifo. Well, I would say that what I am sure we can all
agree on is the fact that we are at a one-year anniversary of
the last time any species was listed. That is certainly not the
way to get at the----
Mr. Sali. OK, but that is not my question. My question is,
in terms of science, is there a rate at which we would say,
yes, species ought to become extinct at this rate throughout
time?
Ms. Grifo. No.
Mr. Sali. There is no----
Ms. Grifo. It is a much more complicated question than
that. The question of extinction, yes, there are background
rates of extinction, but those are on geological time scales.
What we are seeing right now in this country is not on that
time scale. It is not a part of any sort of natural extinction
process.
Mr. Sali. OK. How can we determine what is natural and what
is unnatural?
Ms. Grifo. There are gray areas in all of these issues.
There are areas of uncertainty, but I think it is very clear
that what we are seeing in this country is not about that. It
is not a rate that is happening. Storms and other things that
are non-human oriented are not causing these extinctions. It is
very clear to us that invasive species that--habitat
degradation that, you know, we can go through the litany of
causes are what are causing these extinctions, and it is fairly
clear to make the link from those threats back to us, and that
is why we have the responsibility to work with the Endangered
Species Act to prevent that.
Mr. Sali. Well, as we look at the fossil records, it is
fairly clear that there have been a huge number of species that
have become extinct, and so I am trying to reconcile how do we
look at that series that happened before there was an ESA,
before there was even a Federal government in this country,
before there was even a country here, how do we reconcile that
huge number of species that have become extinct with the
requirements of the Endangered Species Act, which is
essentially, as I look at it, a goal of zero, Ms. Grifo?
Ms. Grifo. I would say that I would welcome the opportunity
to come with a group of my colleagues and have this very
interesting intellectual conversation with you, but the topic
of today's hearing is really about the political interference
in science, and the fact that the Act as it stands is not
functioning.
Mr. Sali. Well, if I were to suggest to you that I think
probably everyone around this series of seats up here agrees
that there is politics involved in this, and that it just
depends on which political side you happen to be on whether you
think it is good or bad in terms of any particular result.
Would you agree with that comment?
Ms. Grifo. No. What I would agree with is that the
Endangered Species Act has parts of it where, for example,
listing. We are looking at best available science and
commercial data. That is the basis of the Act, and the basis of
those listing decisions. There are others where after we have--
--
Mr. Sali. So are you suggesting that there----
Ms. Grifo. Could I finish?
Mr. Sali.--is no politics in this?
Ms. Grifo. I am about to get to that part.
Mr. Sali. OK.
Ms. Grifo. There are other parts of the Act, such as, you
know, critical habitat designation, where we take the best
available science, and then pull that together with economic
and other concerns, and that is the place where we have an open
debate in the light of day where everyone can see it and
participate about how we weigh those things.
I am not here to tell you that science is the basis of
every policy decision. That is not what this is about. What
this is about is the fact that outside of the realm of public
discourse, outside of our democracy----
Mr. Sali. So you would agree that there is politics in
these decisions no matter what?
Ms. Grifo. I agree that there is a point in these decisions
where we do take into account economic and other
considerations, and we do that with the best available science,
not a manipulated or changed science.
The Chairman. And by other considerations, you would
include politics?
Ms. Grifo. I would include economic considerations.
Mr. Sali. Well, you said economic and other considerations.
By other considerations, you would agree that that includes
politics, correct?
Ms. Grifo. I would agree that economics often gets
political.
Mr. Sali. Thank you, Mr. Chairman.
The Chairman. Mr. DeFazio was here first. OK, Dale, do you
have any questions? Let me recognize you. I am sorry. I am
sorry.
Mr. Kildee. I will be very brief. I was a little late. But
you know, I think there is a difference between reviewing and
weighing science, and to force changes in a scientific report,
and I think that is what it is really all about, that we find
evidence that there has been changes forced into scientific
report, which is really dangerous.
I served on the Budget Committee for six years, and we
expected our budget experts to add up for us and say that 2
billion plus 2 billion was 4 billion. We didn't go back and
say, no, make it 2 billion plus 2 billion is 3 billion because
that fits our needs more, and I think it is extremely important
that we can review and weigh the science with the other
factors, but just to force changes in the sciences is
dishonest, I think, and certainly dangerous, and that is all I
have to say, Mr. Chairman.
The Chairman. Thank you, Dale. The gentleman from Maryland,
Mr. Gilchrest.
Mr. Gilchrest. Thank you, Mr. Chairman.
I think I would like to make a comment first before I have
four just short questions. In the Endangered Species Act, the
big picture is simply that human activity very often is not
compatible with nature's design. Even though the science is
some understanding of what parking lots do to the ecology, what
sprawl does to the ecology, what a whole range of air
pollutants do to the ecology, and it is all integrated
together. So unless we tease out what we are doing to cause
species not to be sustainable, the ultimate end to that is that
human beings are not sustainable because we depend on the
resources that we are trying to protect. So it is a closed
loop.
And to manipulate science by any means is doing a huge
disservice to the public. To take politics into consideration
while you are understanding the basics of that science is
always acceptable, but for politics to manipulate and change
that science so that 2 billion plus 2 billion equals 3 billion
is not acceptable. So I hope the Ranking Member and Ms.--I
can't see your name.
Ms. Grifo. Grifo.
Mr. Gilchrest. Grifo. Can get together really. I sincerely
think that some of us on this side of the aisle should sit down
and go through the process of understanding the science behind
the ecology. That would be very beneficial.
The questions I have is just very quickly. Mr.--is it Ruch?
Mr. Ruch. Ruch.
Mr. Gilchrest. Ruch, Mr. Ruch. The situation with Rex
Wahl----
Mr. Ruch. Yes.
Mr. Gilchrest.--and the Bureau of Reclamation?
Mr. Ruch. Yes.
Mr. Gilchrest. A Reclamation project. What is the status of
that right now?
Mr. Ruch. He is still awaiting a decision. He has been at
home on paid administrative leave for nine months, going on 10.
Mr. Gilchrest. And he is on administrative leave because?
Mr. Ruch. He was originally charged with subversive
activities in e-mailing information to the Army Corps and other
groups. That was withdrawn. He is now charged with causing
embarrassment, which we didn't know was an offense, and we are
awaiting a decision by the agency.
Mr. Gilchrest. This is the Department of the Interior?
Mr. Ruch. This is the Department of the Interior, Bureau of
Reclamation.
Mr. Gilchrest. The NOAA gag order, can you make a further
comment on that, on scientists, that they can't make statements
unless--we have heard about this one--they can't make
statements unless those statements to the Rotary Club or to
another agency is vetted through the----
Mr. Ruch. Correct.
Mr. Gilchrest.--political appointee?
Mr. Ruch. This policy is about to become final next week
according to the schedule laid out by the Department of
Commerce, and what it says is--there is two parts. One has to
do with on-duty statements, and those are subject to approval,
but I think the more controversial one is all off-duty
statements that are--deemed of official interest is the term
they use--are also subject to review and approval.
So for a scientist attending a conference, if he is asked a
question and is unsure what the departmental policy is, he is
not allowed to depart from the policy, so as we understand the
policy, he is supposed to say ``No comment.''
Mr. Gilchrest. Interesting.
Mr. Ruch. And the point of all this was that the scientific
process involves collaboration, interaction with colleagues,
but the way these rules are increasingly being interpreted,
Federal scientists are, in essence, being kept more and more in
kind of an intellectual monastery where they are not allowed to
talk or interact or share information.
Mr. Gilchrest. Ms. Scarlett, you may not have anything to
do with that, but if you do, can you give us some kind of
comment. If you don't, fairly you don't.
Ms. Scarlett. I am unaware of NOAA's policies.
Mr. Gilchrest. You don't have anything like that in
Interior?
Ms. Scarlett. I am not aware that we have anything like
that.
Mr. Gilchrest. So in the Interior Department, you wouldn't
have anything to limit an employee from making comments to the
Rotary Club or to the Corps of Engineers about an issue?
Ms. Scarlett. I am not aware that we have any policy.
Mr. Gilchrest. Are you aware of Rex Wahl's situation?
Ms. Scarlett. I am not. I heard about it for the first time
in the testimony this morning.
Mr. Gilchrest. Can you give us some idea of what this draft
document is all about that was on Salon Magazine, and what the
status of that is now?
Ms. Scarlett. Yes, Congressman. Going back a year and a
half or two years, understanding that there have been decades
now of implementation of the ESA, and increasingly, including
in the last administration, issues raised about limitations on
its effectiveness, partly through lack of clear terminology
that has promoted some litigation, the disincentives for
citizen stewardship created in some of the ways that the Act is
implemented, a process began within the Department to put a
number of concepts on the table for possible regulatory
changes.
That process was not completed. It was, if you will, a
putting of everything but the kitchen sink on the table from a
variety of people. When Secretary Kempthorne arrived and was
confirmed at the end of May of last year, he asked that that
effort completely stop; that we put essentially that effort on
the back shelf, and that we hold 25 cooperative conservation
listening sessions around the country on a variety of issues,
not simply ESA, to hear what it is people had to say about
conservation.
In that process, some 80 percent of written comments that
came in actually mentioned ESA, and in particular, said that
some of the provisions of the way we implement ESA stood in the
way of cooperative conservation and citizen stewardship. There
were many comments on the growing abilities of states, their
own biological expertise, particularly for species in those
states, and that they could play a better role as envisioned in
Section 6 of the Act when it was originally passed.
So we went out after those listening sessions and reviewed
those comments. Those are posted, by the way, on a website,
Cooperativeconservation.gov. It is very transparent.
Secretary Kempthorne then asked Dale Hall, who is here with
me today, and his team of Endangered Species Act experts, that
is, his associate regional directors in charge of implementing
ESA in each of the regions, as well as his headquarters'
experts, including Bryan Arroya, who heads up the ESA program
here, and he is also with me today, to sit down with NMFS, and
look at those comments from the cooperative conservation
listening session and themselves write what they thought would
be the best way to move forward in improving the way we
implement the act.
We have a document that is underway. It is not complete. It
continues to be revised, reviewed, and refined. It has been
wholly and 100 percent written by those experts without the
hand of the political appointees of the Department, excepting
Dale Hall himself, of course, as head of the Fish and Wildlife
Service has been engaged.
That is what that process is, and it differs significantly
this product from that which ended up on Salon.com.
Mr. Gilchrest. Thank you very much. Thank you, Mr.
Chairman.
The Chairman. The gentleman for Oregon, Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman.
Ms. Scarlett, is there ongoing work within the Department
to systematically review decisions that Ms. MacDonald may have
improperly influenced? Yes or no.
Ms. Scarlett. There are a number of decisions that were
made over time, some of which are completed decisions, if you
will, some of which are ongoing. What we are doing and in fact
really with the leadership of Dale Hall, dating back a year or
so ago, we created a process, a process for reviewing these
status of each and every ESA decision, whether it is critical
habitat, recovery or otherwise, making sure that we are staying
apace with legal requirements, but also ensuring that Dale had
the full latitude to apply the science expertise of those
within his department.
Mr. DeFazio. But that is avoiding the question. She was
very influential on a number of decisions, particularly as
pertained to critical habitat on the Sage Grouse, the Bull
Trout, and perhaps the Spotted Owl.
Are you reviewing what influence she might have had? For
instance, in the IG report on page 8, it says, ``Agents note in
a number of e-mails and comments on the Bull Trout CHD''--
critical habitat decision--``MacDonald forced, forced a
reduction in critical habitat in the Klamath River from 296 to
42 miles.''
Ms. Scarlett. I am not aware of a current action underway
with respect to Bull Trout. With respect to the Northern
Spotted Owl, which you mentioned, that
The process is ongoing, and Dale Hall's folks and the
recovery team, which includes numerous scientists, are actively
involved in addressing that.
Mr. DeFazio. OK, let us turn to the Spotted Owl. We had a
plan submitted by scientists in the region September 2006. That
plan was rejected by something called the Washington Oversight
Team. Was Ms. MacDonald a member of that team?
Ms. Scarlett. Ms. MacDonald might have been a part of that
team.
Mr. DeFazio. Yes, she might have been. Who was part of that
team? Were you a part of the team?
Ms. Scarlett. I chair that team or I should say----
Mr. DeFazio. OK. Now, could you tell me your credentials in
the area of biology and science, your professional credentials?
Do you have any?
Ms. Scarlett. I am not a scientist, sir.
Mr. DeFazio. You are a political scientist, is that
correct?
Ms. Scarlett. Recover planning, as was noted earlier, is--
--
Mr. DeFazio. OK, that is fine. Ma'am, just answer the
questions, please.
So you are a member of the team. You are not sure whether
Ms. MacDonald--you were the Chair but you don't know whether
Ms. MacDonald was a member or not. Now, that is kind of odd for
a Chair, isn't it?
Ms. Scarlett. No, because----
Mr. DeFazio. If you were the Chair, you must have known who
came to your meetings.
Ms. Scarlett. Well, it was precisely because it was in
flux. This was a team that included Dale Hall. It included his
recovery team people from the Northwest. It included people
from the Bureau of Land Management, from the Forest Service and
others, and this is because this recovery planning effort
actually involves several different documents--the recovery
plan.
Mr. DeFazio. Right.
Ms. Scarlett. Critical habitat.
Mr. DeFazio. True.
Ms. Scarlett. As well as BLM and Forest Service Resource
Management Plan.
Mr. DeFazio. I am familiar with the process. Thank you.
Ms. Scarlett. Therefore, they all took part.
Mr. DeFazio. On the list I have says that she was a member
of the oversight team, so she may have been.
Ms. Scarlett. The reason that I used that terminology is
that the membership has been in flux and it has been some
months since she has not participated.
Mr. DeFazio. OK. So we don't know whether or not she was
really a member of the team or whether or not she may have had
undue influence, but we know there was a particular focus on
critical habitat.
October 17th, with the rejecting by this Washington
Oversight Team, which she may or may not have been a number of,
that you are the Chair of, so certainly familiar with this, you
rejected the plan proposed by the scientists in the Northwest,
and you ask for a rewrite, and you ask for an additional
option, an option two, is that correct?
Ms. Scarlett. Let me clarify, and I am going to read to
you--I am going to read to you a letter----
Mr. DeFazio. We have documents that----
Ms. Scarlett. Yes.
Mr. DeFazio.--substantiate that, ma'am.
Ms. Scarlett. Let me read to you a letter that I have
received because it pertains to testimony today. ``Dear
Dominick, it is with both surprise and displeasure that I have
become aware of a statement in your testimony to the----
Mr. DeFazio. Ma'am, I am not--you may----
Ms. Scarlett. ``I categorically deny making such a
statement.''
Mr. DeFazio. Excuse me. I am asking about factual things. I
am not asking you about the opinion or the testimony of a
future panelist here.
Ms. Scarlett. All right.
Mr. DeFazio. So we don't need to reject his testimony right
now. I am asking about factually documented e-mails, so it was
rejected on October 17th, is that correct?
Ms. Scarlett. No. No. Factually----
Mr. DeFazio. It wasn't?
Ms. Scarlett. No.
Mr. DeFazio. And you didn't ask for a rewrite?
Ms. Scarlett. Factually----
Mr. DeFazio. You didn't ask for a rewrite and the addition
of an option two?
Ms. Scarlett. Sir, would you like me to answer?
Mr. DeFazio. Yes, I am asking, yes or no. It wasn't
rejected?
Ms. Scarlett. The document----
Mr. DeFazio. You just sent it back.
Ms. Scarlett. The document was not rejected. It was a
draft, and as a draft, we always expect further improvements.
What we asked were three things:
Number one, I commended the group for having written a very
outstanding document but suggested that its organization would
merit some reorganization for better readability.
Number two, the document identified in it the Bard Owl as a
significant threat to the Northern Spotted Owl, and yet when
you read the recovery planning proposals there was nothing in
there to address the Bard Owl. We asked whether there was any
scientific or other information that could help us try to
address the threat of the Bard Owl in the recovery plan.
Number three, we asked whether, given the large landscape
scale, using the exact same science and the exact same recovery
goals, there might be a way to utilize an adaptive management
approach and ask that they retain the existing management
approach they were proposing, but could they consider and
propose an adaptive management approach alongside that. So
those were the three requests----
Mr. DeFazio. OK. So that would be where the option two came
from. It said, ``The less defined second option was requested
by Interior Department political appointees and other high-
level officials in Washington, D.C.'' said Dave Wesley. Not
Dominick DellaSala. And he was the leader of the agency's
Spotted Owl recovery team.
Ms. Scarlett. Again, if I could just----
Mr. DeFazio. Right.
Ms. Scarlett. If I could simply repeat. What we had--you
know, a recovery plan is a management plan, and what we were
trying to do is to get the best possible management plan. The
document that we received was an outstanding document. I
commended the Service for it. But we were asking whether,
because of the large landscape scale, it might be possible to
create performance measures and an adaptive management approach
as an option for the public to consider.
The idea is to have a recovery plan that put out two
options. Let us consider them, one, an option that was adaptive
management, the other a more traditional one with lines on a
map that said these are the conservation areas. That is what we
did.
The science remains absolutely identical in both of those
options.
Mr. DeFazio. So then it isn't true that you focused on just
option two. You didn't require them to just submit option two
so that----
Ms. Scarlett. Absolutely not. We wanted multiple options.
Mr. DeFazio. OK. So at no point you restricted them to
option two?
Ms. Scarlett. No.
Mr. DeFazio. OK. And you are basing that on--I am running
out of time here? OK, sorry.
Yes, Don. Well, we are trying to get in a few facts here,
and we are going to end up--Mr. Former Chairman, if you could,
please, it is my time. I am not yielding, and I will end now,
but let me just say we are going to be back in the courts, and
we are going to have another mess because of the perversion
that has gone on here, and I will come back for a second round,
and continue the line of questioning. Thank you.
The Chairman. The Chair appreciates the gentleman from
Oregon, the Ranking Minority Member has just arrived. The Chair
will recognize him.
Mr. Young. I have already been recognized, but thank you,
Mr. Chairman.
[Laughter.]
Mr. Miller. In a dark night with no flashlight.
[Laughter.]
Mr. Young. That is the greatest compliment I have ever had,
Mr. Miller.
[Laughter.]
Mr. Young. Madam Secretary, were there any regulatory
changes in the Endangered Species Act during the Clinton
Administration?
Ms. Scarlett. I believe in the Clinton Administration there
were several regulatory--ESA regulatory proposals made. I do
not believe that they were finally implemented, but perhaps
Jamie Clark would be best positioned to answer that.
Mr. Young. Ms. Clark?
Ms. Clark. During the Clinton Administration, there were
administrative updates, if you will, to the Endangered Species
Act. They were done through open public notice and comments,
things like peer review, enhancing the role of states.
Mr. Young. Not much difference to what has occurred here?
Much of the same thing.
Ms. Clark. Well----
Mr. Young. Madam Secretary, what was the goal of those
policy changes? Do you have any idea what the goal was?
Anybody?
Ms. Scarlett. You are asking me about the----
Mr. Young. Yes.
Ms. Scarlett.--Clinton Administration goals?
Mr. Young. Yes.
Ms. Scarlett. When I look at those goals, they were very
much the same as the goals that we have: enhancing
partnerships, the role of states, enhancing and clarifying the
requirements for science and documents, and improving the
opportunity for conservation partnerships, et cetera, and a
focus on recovery.
Mr. Young. Do you recall whether a Republican Congress ever
enacted legislation or a rider to an appropriations bill that
would prevent or prohibit these changes from occurring?
Ms. Scarlett. I am not aware of any such rider being
enacted.
Mr. Young. It has not, in fact.
What is the goal of the current potential regulatory
changes of the Endangered Species Act? What is your goal?
Ms. Scarlett. Our fundamental and central goal is to
enhance recovery and to do so by enhancing the opportunity for
cooperative conservation partnership, partnerships with states
and so on.
Mr. Young. Well, there is not much difference from that
than what Secretary Babbitt tried the same thing, I believe,
under the Clinton Administration, same proposal.
Ms. Scarlett. These kinds of concepts have been in play in
academia among the western Governors, as well as among
administrations, both Democratic and Republican. That is the
focus on recovery, better opportunity for states, and better
opportunity for citizens and landowners to participate in
conservation.
Mr. Young. And if I can, Mr. Chairman, my concern here is,
and of course, I am probably the only person on this Committee
that has ever voted for the Act itself, and it is probably the
worst vote I made because we were misled at that time in what
the Act was supposed to do, and the Act has been implemented
and used by groups to try not to preserve species, but to
impede any type of development or growth, and that is the
unfortunate thing.
We have two cases in Alaska right now, which very, very
concerns me in this Act. One is the Polar Bear. Oh, boy, we are
going to save the Polar Bear. There is no shortage of Polar
Bears, no science was ever studied. Yet it is possibly being
put on the Endangered Species Act which will affect any type of
fossil fuel development in the United States.
We have another--without any science again--another
beginning of the Beluga Whale. No science, no study, but the
species is declining in Cook Inlet, which also is my largest
port, and if they are put on the Endangered Species Act without
any type of cooperation with the state, it shuts down the port
and the main entry for any goods coming in the State of Alaska.
So we have to, as this Committee, Mr. Chairman, and I think
the members of the Committee, instead of just pointing the
finger at the administration, come up with some alternatives.
We must save the species if that is what we are seeking to do,
but let us not forget that we have the human factor involved
also, and it is ironic to me, and I will speak to my good
Chairman, that most of this Act has been really forcibly put
upon the western states, and I don't consider California too
western anymore. It has been infested by those liberal elements
that I am not sure what they are, but Oregon is getting there,
and Washington is right behind it, and I am afraid Alaska may
be next.
But it seems to me that this Act has been used----
The Chairman. What about West Virginia?
Mr. Young.--over and over again.
The Chairman. What about West Virginia?
Mr. Young. Well, no, no, that is what I am saying. It has
not--when was the last time West Virginia----
Mr. DeFazio. Where are we getting done?
Mr. Young. Mr. Chairman.
Mr. DeFazio. Where is Oregon getting?
Mr. Young. Close to California, not quite yet, you are
getting there.
Mr. Chairman, I have to ask you, and what I am leading up
to, it seems to me like a lot of this Act is not used in the
eastern states to a great degree.
The Flying Squirrel?
The Chairman. We have someone on the next panel.
Mr. Young. The Flying Squirrel? 1985, the Flying Squirrel,
which is 1985, 1995, that is 22 years ago, and I am just saying
if we want to protect the species, then I think we ought to
rewrite this Act because what I think the administration is
trying to do is discouraging those landholders private entirety
of protecting the species.
Now, I want to go through the story, and I will be quiet.
My dad died and he left a ranch to my brothers and myself, but
he left 21 acres in the middle of that ranch that you cannot
touch. It is probably the only place, Mr. Miller, in California
you have yet you can see everything as it was many, many, many
years ago.
Now, every place around that ranch they farmed it right up
to the quick. We call it the quick. No more fence rules, no
more nothing. And low and behold, the Golden Garter Snake was
going to be put on the endangered species list, and low and
behold, guess where most of those garter snakes were located--
in those 21 acres.
Now here comes Fish and Wildlife and says Endangered
Species Act, you have to have a buffer zone around the 21
acres, which would have taken in the whole ranch. Instead of
patting him on the back and giving him ``Good job, Russ, you
did great, you saved the Golden Garter Snake for us, here is
something you can have, a plaque to put up on your wall,
continue that good work,'' they want to put a buffer zone, or
did, they are not going to do it now, a buffer zone around
there, and what you call ``Shoot, shut up, and shovel,'' and
this is what this Act is doing.
So we better listen to the administration, and come up with
some new ideas, and how we can make this thing work better. If
not, we have failed. Never was the intent of that. I am saying
I am the only one on this Committee ever voted for the dumb
act, and 1 percent recovery rate of the whole thing--1 percent.
Yet the imposition upon every landholder private has been
untold and taken away from those peoples, and taken without
compensation.
Thank you, Mr. Chairman.
The Chairman. Since the gentleman from California has been
honored by the vicious attack by the gentleman from Alaska, I
will recognize him to defend himself.
[Laughter.]
Mr. Miller. Well, I would rather get back to the subject of
the hearing. I have been on this Committee for 33 years, so Mr.
Young and I have been back and forth at one another for a long
time.
Ms. Scarlett, according to court documents that I have
looked at show that Deputy Assistant Secretary Julie MacDonald
allowed the California Farm Bureau's lobbyist to make copies of
internal Interior document deliberations in an attempt to
really damage or undermine the review process of the threatened
Delta Smelt. That was in 2004. Are you aware of that?
Ms. Scarlett. I am aware of that. I have read the same
things you have read.
Mr. Miller. What actions were taken in response to that?
Ms. Scarlett. First, let me say Ms. MacDonald has resigned
and is no longer with the Department.
Mr. Miller. Everybody in this government is resigning. I
want to know what happened in the Department.
Ms. Scarlett. OK. Well, let me go through sequentially.
Second, working with Dale Hall about 12-15 months ago we
worked out a process so that Dale would work directly with his
Fish and Wildlife Service people on the science and information
and generation of packages, and that the Washington office,
including----
Mr. Miller. That was in response to what?
Ms. Scarlett. That the Washington office and Ms. MacDonald
would appropriately apply their role of overseeing and looking
at quality control, but that the documents themselves would be
developed in the field by the Fish and Wildlife Service people,
and that was out of concern that we wanted a process in which
that----
Mr. Miller. But there were other scientific documents that
Ms. MacDonald edited and reviewed and changed, is that not
correct?
Ms. Scarlett. Ms. MacDonald, fulfilling her role as a
deputy assistant secretary----
Mr. Miller. Not as a scientist.
Ms. Scarlett. That is correct, but as her role of
fulfilling the role of overseeing and reviewing documents
certainly did edit documents appropriately. Remember the
documents come in and they are not simply about science.
Oftentimes there is quality control issues, issues that pertain
to whether the document actually has substantiated claims made,
or whether it is coherent and consistently written.
Mr. Miller. Have you reviewed her actions on the Smelt
decision, on the vernal pools and Tiger Salamander and the
Split Tail?
Ms. Scarlett. I have not reviewed her decisions on those
specific issues.
Mr. Miller. Well, let me tell you something. You know, this
is a very, very serious matter because, you know, as the
courts--the state courts made a determination that the
California may have to shut down its pumps because it is out of
compliance to pump water from the north to the south, which is
obviously a very important event in the California economic and
social life.
They are now telling us that they believe that they have
equivalency permits based upon the work done at the Federal
agency. We now learn that the Federal agency work may very well
have been undermined and changed, and in a scientific fashion,
not just editing what she knew something about, but editing the
scientific findings and determinations and suggestions of
scientists.
So now our state people are suggesting--I don't think I
agree with them, but they are suggesting that somehow they have
an equivalency permit based upon a series of processes and
findings here that may in fact be fraudulent.
Ms. Scarlett. Sir, I am not familiar with the equivalency
permit as to what----
Mr. Miller. OK. Let us just talk about what you are
responsible for, and each one of these determinations, which is
absolutely critical to operation of the California water
programs, the Federal and state water programs, we now have
this woman wandering around here changing the content and the
findings of these determinations.
Ms. Scarlett. What I can say is that on the Delta Smelt,
Steve Thompson, who heads up the California and Oregon office
out there, or California and Nevada office, is the individual
in charge with overseeing the process and decisionmaking on
Delta Smelt, and all my interaction on that issue has been with
him and with him only.
Mr. Miller. So your testimony would be that you believe
that the exiting protections for the Delta Smelt are sufficient
for recovery?
Ms. Scarlett. I can't speak to that. I would have to defer
to Steve Thompson and the Fish and Wildlife Service and their
judgment on that as scientists.
Mr. Miller. Well, my concern is that Mr. Thompson's and
others' determinations may be built upon these actions by Julie
MacDonald.
Ms. Scarlett. Certainly the Fish and Wildlife Service, I
believe, on an ongoing basis continues to examine the science
and the foundations of the decisions that it is rendering, and
that is the case with the Delta Smelt.
Mr. Miller. Well, it is interesting that, you know, a
number of your career biologists and other scientists have made
it clear that this doesn't represent their work. In fact, she
took their names off some of the reports, so we don't know what
it represents now.
Ms. Scarlett. Congressman, as we go forward with all of
these endangered species issues, we are striving to uphold the
greatest integrity in our science and----
Mr. Miller. That is my concern. That is my exact concern.
Ms. Scarlett.--we will continue to do that
Mr. Miller. That we know how difficult and we know the
splits in Congress and in society and everywhere else around
the Endangered Species Act, and the theory is that at the end
of the day we rely on good science, and sometimes you like the
decisions and sometimes you don't, but when you have a person
like this wandering around with reported conflict of interests
in terms of her own land ownership she and her husband has in
the Sacramento Valley, you start to get very concerned about
what happens here.
Do you understand the level of concern? We are talking
about the economy of the State of California, and decisions
that have been made one way or the other--forget whether I
agree or disagree with them--but now we find out that we have
this individual wandering around making determinations based
upon her beliefs.
Ms. Scarlett. Let me state again, Ms. MacDonald has
resigned from the Department. We are striving to ensure the
highest integrity of science----
Mr. Miller. In 2004, in 2004, she----
Ms. Scarlett.--and will continue to do that.
Mr. Miller.--is letting people come into the office to take
e-mails to undermine the government's case. 2004. This is 2007.
She has resigned. That is no gift to the country. She has been
wandering around there for three more years. This is a serious,
serious ethical and legal problem for the Department, and it is
a serious problem in terms of what we now can rely on or not
rely on on at least two species, maybe three species that are
absolutely critical to determining how we provide for the
health of San Francisco Bay and the San Joaquin/Sacramento
Delta. Absolutely critical in terms of the future planning of
this state.
What are you going to do?
Ms. Scarlett. Congressman, we are striving--I can move from
this moment forward, and we have been over these last months
assuring what I believe is a process of integrity. Our Fish and
Wildlife Service head of the Endangered Species Act Program and
his counterparts in the regions are striving to utilize the
best science and do so in a transparent way properly. Documents
that are presented to the Department are reviewed to ensure
that they have legal sufficiency, that they are coherent and
clearly stated, and that is the policy of this Secretary, and
that is what I am striving to do.
On an ongoing basis, on an ongoing basis for----
Mr. Miller. The process broke down in this instance? Did
the policy break down?
Ms. Scarlett. I believe it is extraordinarily important, as
everyone----
Mr. Miller. No, no, no. Did the policy break down?
Ms. Scarlett. As everyone around this table has said, it is
imperative that science proceed with the utmost----
Mr. Miller. And I am asking you, everybody agrees to that,
we all agree to that. In this instance, did the policy break
down with the involvement of Julie MacDonald in these
decisions?
You are striving for something but you have a person
wandering around exerting exactly opposite energy of what you
say you are striving for.
Ms. Scarlett. Sir, we created a process so that there would
not be the sort of direct engagement in the field, but rather
the appropriate departmental review process.
Mr. Miller. So let me ask you. You created this policy----
Ms. Scarlett. Which we think is the appropriate way to
proceed.
Mr. Miller. Did you create this policy knowing of her
activities, so you worked around her, and she resigned now? Is
that what you are telling us? You and----
Ms. Scarlett. No.
Mr. Miller.--the regional office are working around her
involvement?
Ms. Scarlett. No. As the ESA decisionmaking has unfolded
over many years, including most recent years, Julie MacDonald
strived to do what she thought was her duty to ensure quality
product.
Mr. Miller. Oh, give me a break. Give me a break on this,
OK?
Ms. Scarlett. As we----
Mr. Miller. My time has run out. If you believe that, if
you believe that, then we are in very serious trouble here, and
the underpinnings of the integrity of this Department are in
very serious trouble.
Ms. Scarlett. Sir.
Mr. Miller. And the ripples----
Ms. Scarlett. Sir, let me----
Mr. Miller.--of her activities are a real consequence.
Ms. Scarlett. Sir, let me complete the sentence. As we
became aware that there might have been some direct engagement
with scientists in the field, we thought that that was not the
appropriate way to proceed, and consequently we made assurances
that that would not be how the decision process would unfold.
Mr. Miller. But in a number of cases, that is how it
unfolded at the end of the day, with all due respect. That is
how it unfolded over the last three years.
The Chairman. The gentleman's time has expired.
Mr. Miller. It has expired. Mr. Chairman, I would like to
make a request. I think at some point it is very important that
the Committee staff have the ability to interview people from
the Department, and former people from the Department under
oath to make a determination. The has huge ramifications for
the State of California, and I would like to discuss that with
you later. I am not asking you to make a decision now, but I
would like very much to discuss that with you later.
The Chairman. The Chair understands.
We will recognize the gentleman from New Mexico, Mr.
Pearce.
Mr. Pearce. Thank you, Mr. Chairman. I would join with the
gentleman who just spoke. The wolf issue is a very major issue
in New Mexico, and the current program managers can't tell us
one thing about how many wolves are running loose outside the
tract area, and I would like to under oath talk to the people
who are implementing the wolf program in New Mexico because it
does, it eats away at the very economic basis of our Western
way of life because the grazing permits are being taken away
from people whose livestock are being killed by the wolves, and
all the people who are going to make sure that New Mexico has
got all the wolves it need.
By the way, when the wolves kill too many animals in
Arizona, they bring them to New Mexico to release them, and I
would like to get that under oath. So I would share the
gentleman's request for a panel where we talk to people under
oath.
Ms. Scarlett, we had testimony from one of the witnesses
that the Bush Administration is choking off the funding. Yet
when I look at the funding I see in comparative years, if we
take today and move back four years, take the end of the
Clinton Administration, move back four years, see conservation,
3.8 under Clinton, 9.7 under Bush; listing, 4.4 million under
Clinton, 12 million under Bush; consultation, 16 million under
Clinton, 47 million under Bush; recovery, 36 versus 67. That
doesn't feel like we are choking funding off.
Are we choking funding off? Can you make some sort of an
assessment about the choking of funding?
Ms. Scarlett. Sir, we have taken extraordinarily seriously
our responsibilities under the Endangered Species Act, and I
believe the budget numbers that you just described reflect
that. I will add to that, that under the President's vision of
cooperative conservation we have also increased cooperative
conservation grants by some 50 percent. Those grants being
precisely the vehicle through which we work with landowners to
get on-the-ground recovery, and that to the tune of some 320
million in our proposed 2008 budget.
Mr. Pearce. Yes, the starving of funding is a curious
statement.
Are you familiar with any of the scientists? We have been
hearing a lot about science. Are you familiar with any
scientists in the agencies who have misused facts?
I would direct your attention to the lynxes.
Ms. Scarlett. I was going to say, sir, there was an
instance several years ago in which some lynx's hair samples
were----
Mr. Pearce. Yes, there were three Forest Service employees,
there were two Fish and Wildlife employees, and there were two
State of Washington Department employees who basically
falsified information so that in one article it said the
culture inside the agencies is one that approves of lying and
cheating on the part of the scientists involved.
So when I hear about science, I realize we also need to
balance it out by the internal agencies' willingness to achieve
its agenda no matter what methods of science are used.
Whatever happened to those people? We see Ms. MacDonald has
resigned, and we see her--we are going to get her in here under
oath or get you here under oath. Whatever happened to these
Fish and Wildlife Service employees for lying and cheating?
This is according to the newspaper that they did that.
Ms. Scarlett. Sir, it has been about four years. I don't
recall what actually occurred with them. What I do know is that
it was that instance that actually resulted in our beginning to
craft a Code of Scientific Conduct to try and create procedures
whereby we could better assure that that would not happen, and
that there would be accountability should it happen.
Mr. Pearce. I was up about two or three years ago flying
over a central Arizona project, and they were pointing out one
down, that they would empty out, and then some environmental
group brought suit so that they couldn't put the water back in.
So the ended up getting $25 million, this environmental group
got $25 million in order to allow them to put the water back
in. That seems and feels like extortion.
You have 111 suits right now that agencies and NGO's have
brought against you--environmental groups. Do any of those
groups ever make money off those lawsuits? Do they ever get
settlements from the agency or someone?
Ms. Scarlett. There are instances where there are
settlements. There are also instances where their attorney's
fees are paid.
Mr. Pearce. Fees that are paid.
Ms. Scarlett. That is correct. I do not have the tally
though of what that would be.
Mr. Pearce. So Defenders of Wildlife has four suits on this
block of stuff. Defenders of Wildlife could actually draw
revenue. They could draw cash payments for the outcome of that
suit. Is that more or less correct, Mr. Scarlett?
Ms. Scarlett. In the disposition of lawsuits, it is
possible that organizations receive either attorney fees and/or
settlement.
Mr. Pearce. So the Defenders of Wildlife, when I get the
word that the Defenders of Wildlife actually has received cash
settlements, that would be somewhat accurate? It could be
accurate?
Ms. Scarlett. It could be accurate that there are cash
settlements and attorney's fees paid.
Mr. Pearce. As far as the wolf involved in western New
Mexico--by the way, it is now--I will use this point to say
that we have had spottings as far away as maybe 200 miles away
in New Mexico. People are getting concerned. The last things
the wolves did was go into a corral, they were chasing the
horse. It ran back to its house, felt like it could get
sanctuary. They attacked and killed the horse inside the corral
there right behind the house. They have killed pets.
What is the agency doing to see that no human life is taken
because we had testimony in this Committee last year that the
most provocative thing to a wolf is a baby crying or laughing?
That was testimony that came from a scientist, a specialist. So
I worry about my constituents when the wolves in my district
actually come up and take a horse right out of its pen, and I
mean they strip it down to where it is a skeleton left, it
looked like piranhas had been associated with it. It was not a
very pretty thing, and in fact then the next week they killed
another horse right in the same area. Meanwhile the agency is
trapped by people who would be bring lawsuit to keep it from
touching any of the wolves, and they are supposed to. Their law
says, the regulation says it is supposed to.
What is being done to protect the innocent live in the 2nd
District of New Mexico because Fish and Wildlife puts the
killer wolves, the ones who are too big a danger in Arizona,
they get brought to New Mexico, and New Mexico is a releasing
point? I would like to take them to Central Park and release
them there. If it is good for western New Mexico, it is good
for every place. I think we should bring them here and put them
loose on the mall. That would be nice. If it is OK for New
Mexico, it ought to be good for anyplace.
But tell me what is being changed about that.
Ms. Scarlett. Sir, the Department and the Fish and Wildlife
Service recognize the challenges of large species, be it wolf,
grizzly bear or others, that do pose threats to human
settlements, property, domestic livestock and so forth. The
Endangered Species Act does require that we protect species
that are threatened or endangered of extinction, and I believe
the Department has done that well.
We have just recently proposed the de-listing of the Gray
Wolf in a portion of its range. As we do that, we do so with a
very careful management plan in cooperation with states to help
ensure that those wolves are managed in such a way that on the
one hand they thrive, and on the other hand they do not pose
threats to people.
So it is a challenge. These are predator species. On the
other hand we try to both ensure that human populations and
domestic livestock are protected by working with states in
their management as well as with local communities, and then at
the same time fulfill our responsibilities, but it is an
ongoing challenge.
Mr. Pearce. The ranchers out in western New Mexico wish
they would be listed as an endangered species where they could
get that same protection from the U.S. Government. Thank you.
Appreciate it, Mr. Chairman.
The Chairman. The gentleman from Wisconsin, Mr. Kind.
Mr. Kind. Thank you, Mr. Chairman. I want to thank you for
holding this very important hearing, and for the testimony that
we have had here today, and quite frankly, it is astounding,
you know, just hearing the reports and the accounts, and it is
not just limited to the Department of the Interior, but
virtually every Federal agency in this administration in
regards to the political manipulation of facts and
scientifically based studies, and I am talking about political
appointees in the Pentagon, I am talking about the U.S.
Attorney scandal right now, I am talking about the revision and
rewriting of global climate change and global warming reports.
Now this ESA is really just the tip of the iceberg of what
we have been seeing consistently through the administration. I
am not confident that this matter with Julie MacDonald will be
held right internally, I wouldn't be surprised if she gets the
Medal of Freedom Award by this administration at the end of the
day.
In all seriousness, reading the IG's report should be a
call for action on this, and yet given Secretary Kempthorne's
glowing praise for her at the time of her resignation, I am not
at all confident that the Interior Department has the
willingness or capability of bringing some accountability to
this matter, and that is tragic because not only has the
Congress lost confidence of this administration and in this
agency in dealing with this, but more importantly, the American
people are because they see this manipulation that has been
taking place over the last six years in this administration.
I know this has been uncomfortable for you, Ms. Scarlett,
but that is the way it has to be, and I want to specifically
ask you a question in regards to the process of de-listing the
grizzly bears right now, and the American Bald Eagle, and
whether or not the proposed changed rules that is pending at
Fish and Wildlife has had any influence in that decision as far
as de-listing of the Grizzly at Yellowstone and the American
Bald Eagle that we are about to move forward on.
Ms. Scarlett. Let me speak first to the Bald Eagle. The
Fish and Wildlife Service has been working for some time on a
de-listing proposal for the Bald Eagle. When the Bald Eagle or
if the Bald Eagle is de-listed, it comes under the protection
of the Bald & Golden Eagle Protection Act. Therefore, it will
continue to have significant protections.
Mr. Kind. I understand that, and I submitted a letter to
you, or to Secretary Kempthorne dated April 13, signed by 25 of
my colleagues, including the Chair and Mr. Miller here,
questioning the wisdom of redefining the definition of
``disturb'' under the Bald & American Eagle Protection Act, and
this is important.
Ms. Scarlett. It is.
Mr. Kind. It is an important factor, and as far as
maintaining the appropriate protection for the Bald Eagle,
which is an incredible success story, and the American people
see it as such. But if we blow this now----
Ms. Scarlett. Yes.
Mr. Kind.--in redefining definitions that have common
meanings and common practice, then we are not going to be able
to list it in one of those successful stories.
Ms. Scarlett. Sir, I believe the definition that we now
have builds upon the very common practice that you are talking
about. There were earlier definitions that have been
repudiated. The one that is currently under consideration
builds upon common practice and the experience of our Fish and
Wildlife Service.
Mr. Kind. Well, if I could request a written response to
the letter that we have submitted, and I will give you another
copy of the letter today, and perhaps a briefing, and I am
taking the lead on it, and if you have someone that is
specifically--and I have had conversations with Director Hall
about this matter myself for some reassurance, because all the
fly always counsels were raising concerns about this
definition, and perhaps most importantly, most of the state
fish and wildlife agencies are saying themselves are saying
that the proposed redefinition was unworkable, and wouldn't
provide adequate protection for the Bald Eagle, and it is
important that they are on board with all of this given the
reliance Fish and Wildlife has in working with the state
agencies in the implementation of these practice plans.
So if you could submit that written response or have
someone respond to us, and then I would like to sit down with
someone.
Ms. Scarlett. Be happy to do that, and we concur that it is
imperative that that definition of disturb build on common
practice, and assure the long-term survivability and
flourishing, indeed, of the Bald Eagle.
Mr. Kind. And as far as Mr. Ruch and Dr. Grifo and Ms.
Clark is concerned, we have heard some very good
recommendations on what type of action that perhaps the
Congress can take as far as tightening up these procedures to
see that the science is being pursued and implemented, and what
we would be asking from you is maybe some specific proposals
and what action this Committee, this Congress can be taking,
assuming that the administration themselves or the agency is
incapable of implementing changes in light of the IG's reports
and all the other reports coming out.
I have heard the need of greater transparency, greater
whistle blower protection, perhaps changing the definition of
the standard of proof from arbitrary and capricious to
something that might--we might have to look at in that regard,
in regards to the definition of proof that we currently have to
show, but we would be looking for some specific proposals, and
I think some of that is already in your written testimony. I
haven't had a chance to review everyone's written testimony
yet, but that would be very helpful as we move forward.
Thank you all again, and thank you, Mr. Chairman.
The Chairman. The Chair recognizes the gentleman from
Colorado, Mr. Lamborn. I apologize for not recognizing him
earlier as he was the first here today.
Mr. Lamborn. Mr. Chairman, thank you.
We have had some discussion today about the role of science
and I think there has been a--some people may have given the
impression that science never varies and people are always in
agreement, and all scientists are going to look at a problem
and come up with the same answer and conclusion.
Dr. Grifo, I hope I pronounced that correctly.
Ms. Grifo. Yes.
Mr. Lamborn. Wouldn't you agree with me that scientists can
look at the same set of facts and in good faith come up with
differing conclusions?
Ms. Grifo. Yes, sir, and that is the purpose of peer
review. That is the purpose of exchanges at scientific
meetings. I mean, I am not going to sit here and tell you that
every scientist is in lock-step on every topic. But I think the
problem that we have seen at Interior and with Fish and
Wildlife is that there is no clear policy that even allows the
career scientists to be at those meetings, to publish in
those----
Mr. Lamborn. Well, that is OK. I didn't ask about that.
For instance, what is a species and what is a subspecies? I
mean, a subspecies is not a species, but yet you have the
lumpers and the splitters, you know, to use a colloquial term,
in the scientific community, and some will say that subspecies
shouldn't get extra protection and others would say it is
separate and should get.
Don't you agree then that we have these good faith disputes
and if scientists can't agree, you know, what is a bureaucrat
going to do?
I mean, it is not as clear-cut as maybe some of the panel
have intimated. Wouldn't you agree with that?
Ms. Grifo. The Endangered Species Act asks for the best
available science, and that is what we need. Now, that best
available science can come from a number of different sources,
and it can reflect a variety of different opinions.
Unfortunately, what we are seeing is that when there is a
reconciliation of those opinions, that the science is being
changed before that open process even occurs, and that is the
problem, sir.
Mr. Lamborn. Well, and the reason I bring this up, in
Colorado, we have the Tree Bulls Meadow Jumping Mouse, and then
it was getting additional protection, and yet a scientist came
along and said, hey, that is genetically identical to the Bear
Lodge Jumping Mouse, which is not threatened up north, north of
Colorado. So that has created all kinds of turmoil, and
millions, tens of millions of dollars of expense to the
taxpayers, and private property owners.
Ms. Grifo. Could I respond?
Mr. Lamborn. No, that was just a comment.
Ms. Grifo. OK.
Mr. Lamborn. Thanks for your willingness though.
Ms. Grifo. OK.
Mr. Lamborn. Ms. Clark, a question for you, a conceptual
question. If there is a species that is common and thriving in
another country, like Canada, let us say, but its total
territory in the U.S., it is under threat, and wherever it
lives in the U.S., and its habitat and it itself is under
threat and in danger. What should we do? Should we assume that
because the species itself, its future on the planet Earth is
assured, but in the U.S. it is under threat. Should we take
steps to protect it in the U.S. where it is under threat?
Ms. Clark. The U.S. Endangered Species Act does under the
definition of species provide protection to species, subspecies
and distinct vertebrate segment, and the policy defining
distinct vertebrate segment, at least while I was at Interior,
did in fact acknowledge that the United States had an
obligation to protect the species within its borders because
the reach of the law as it relates to consultation, obligations
for recovery, and interagency coordination happens only within
the United States.
So there actually are a number of species on the list, the
Woodland Caribou, the Northern Rockies Wolves, Marble Murrelet,
all of which a decision was made that they were important to
the ecology of the United States, and the Endangered Species
Act should afford them protection under the rules of the U.S.
Mr. Lamborn. So hypothetically speaking, if there is a lynx
or a be Polar Bear or anything else, and it is thriving in
Canada, and it only historically was ever marginally in the
U.S., that marginal existence in the U.S. would trigger all
kinds of action against private landowners or anything like
that who might step in the way of that species where it is 1
percent existence in the U.S.?
Ms. Clark. Well, the existence, and having suitable range
in the United States affords the opportunity of the Endangered
Species Act to provide that protection. Yes, it does. Today's
law allows for the protection of the U.S. range species in
danger from their status in the United States.
Mr. Lamborn. OK. So the law doesn't contemplate the
existence of that species in other like neighboring countries?
Ms. Clark. It can, but there is the opportunity given the
reach of the law, the other sections of the law--recovery,
consultation--to declare the U.S. population a distinct
vertebrate segment because it recognizes the international
borders. That was done by policy years ago.
Mr. Lamborn. Along a similar vein, and I know
Representative Young, who was here a few minutes ago, would
come down on this, but I question whether the original intent
of the law and those who passed it in Congress 30 some years
ago, for instance, wanted insects to be on the list of
endangered species, and I noticed that in your comment you
refer to how it is good that we are bringing back the wolf, the
Timber Wolf, and the manatee, and I believe the eagle is the
other species you cite, and those we would all agree deserve
and need protection, and it is wonderful what is happening.
But were insects intended by the original passage of the
law?
Ms. Clark. Yes, absolutely they were, Congressmen, because
if you look at the ecological web of life, we don't
differentiate between charismatic mammals or insects, fish,
amphibians, reptiles, about the ecological connectivity of the
fabric of what makes up the systems and the unique habitat
systems in this country.
And so there are a number of insects--butterflies, they are
insects. Most wouldn't debate that. And so it suggests some
level of taxonomic arrogance to decide whether a wolf gets
protection and a Bay Checkerspot Butterfly does not. These
species are afforded legal protection regardless of taxonomic
classification.
Mr. Lamborn. Excuse me?
Ms. Clark. I just summarized by saying all the species,
whether they are an insect, a mammal, a reptile, if they are in
danger of extinction or threatened with endangerment should be
afforded legal protection.
Mr. Lamborn. Thank you.
The Chairman. The Chair recognizes the gentlelady from the
Virgin Islands, Ms. Christensen.
Ms. Christensen. Thank you, Mr. Chairman.
I was particularly interested in this hearing.
Unfortunately, I had another just about equally important
hearing so I have been back and forth, but I want to thank you
for holding this hearing because it deals with two issues that
have been of great concern to me. One is the weakening of the
Endangered Species Act.
In my time serving on the Committee on National Parks, we
have fought back unsuccessfully in the last Congress some
encroachments on that using exaggerated issues regarding the
Department of Defense or Native American populations, and
today, I haven't completely gotten through all of the testimony
either, but I notice reports of reducing staff, which also
undermines the ability of the Department to address the issues
concerning the Endangered Species Act.
But another issue that, as Mr. Kind said, goes far beyond
just this one agency is the changing of reports and the
replacement of scientists by not only industry people, but
religious ideologies, and so the reports don't come out based
on the best available science.
One of the reports that I dealt with as a physician was the
one coming out of the agency on health care, quality and
research on health disparities. The first report actually
showed that there were major disparities between racial and
ethnic minorities and the rest of the population, and when it
got to the Office of the Secretary, that report was changed so
that the report as it came out initially showed that there were
no disparities. Luckily, some of the Committee members over
here had them go back and issue the original report.
So I am hoping that beginning to look at this one issue
today in this agency will help to reverse some of that, and it
is important that we be able to have confidence in the reports
coming out of the administration.
I guess, about to ask one question that I am sure it has
probably been asked. Again, I would ask Deputy Secretary
Scarlett, because it is important that we are able to have
confidence in the reports coming out, if all of those reports
that came out under Ms. MacDonald, are they being reviewed and
can we anticipate that they will be revised or looked at and
revised, if necessary, using the best available science?
Ms. Scarlett. Congresswoman, this issue has come up several
times this morning. Let me just say right now as clearly as I
can where there is evidence of science manipulation, we want to
correct that, and we will explore where those incidences are
and address them.
I do want to say that I believe we are applying scientific
integrity. I think that in the Fish and Wildlife Service we
have outstanding scientists. I trust them. I rely on them. I
defer to their judgment, and Secretary Kempthorne likewise does
as well. If there are incidences and specific examples of
interference, we will look at those and take whatever steps are
appropriate.
Ms. Christensen. Deputy Secretary Scarlett, my workings
with you, you know, I have worked with you on issues at home
and other places, and I found you to be a person of integrity.
I think though that everyone of the reports that has come out
under the personnel who resigned needs to be reviewed because
unless we look at all of them we won't know if there were some
decisions that were made that were not based on science. To me,
the assumption should be there that all of them may have some
flaw and need to be looked at.
Mr. Chairman, I have no further questions.
The Chairman. The gentleman from South Carolina, Mr. Brown.
Mr. Brown. Thank you, Mr. Chairman. I will be brief. I
notice a lot of other questions need to be asked, but I was
going to ask Dr. Grifo, if I might. Let me give you an example
and see how you would respond.
There is a species that is currently at an historic
population level but whose habitat may be significantly altered
in the next 50 to 100 years. Should the Fish and Wildlife
Service list this species today?
Ms. Grifo. That is a question for the process that the
Endangered Species Act requires, the best available science. We
need to have the career biologists do their part, whatever
advisory committees are appropriate do their part. I mean, that
is not for me to answer. The important thing is that we have a
process that this Act enables, and the important thing is that
we do not manipulate the science going into that process. That
is what is critical to the outcome.
Mr. Brown. I would like, if I may, Mr. Chairman, is to
yield my available time to Mr. Pearce.
Mr. Pearce. Thank the gentleman for yielding.
Ms. Clark, I was hearing your comment about equal
protection for any species. So if you had to choose or if we
had to choose between a species and a forest dying, which would
you choose?
If it is a matter of the trees and the forest dying, or in
spraying to protect the trees, you might kill the butterflies
there, what decision would you have made as director?
Ms. Clark. I don't make decisions in the hypothetical,
Congressman.
Mr. Pearce. Well, it is not hypothetical. Let us go to New
Mexico right now, Cloudcroft, New Mexico. We have 50 or 60
thousand acres that have already died, every tree there. They
have a disease which started about two years. The Forest
Service made the decision not to spray for the butterflies and
for the Spotted Owl. Meanwhile the forest is going to simply
die. Cloudcroft, New Mexico, sits nestled in there, and the
fire alarm, the fire danger among the citizens is
extraordinarily high. People are bringing suits to keep from
cutting the trees.
My question is then in the non-hypothetical, would you
spray and kill butterflies or would you save the forest?
Ms. Clark. There is a provision in the Endangered Species
Act that----
Mr. Pearce. I am asking what you would do. Would you make
the decision to spray and save the trees and kill butterflies
or would you do what has been done right now?
Ms. Clark. I am not going to give you a yes or a no, sir. I
would make the decision----
Mr. Pearce. That is OK then. I would reclaim my time then.
I am just asking your input because a decision has been made
and we got people who are very gravely at risk because of
decisions that are made.
Ms. Scarlett, you might want to think about that because it
is an issue that we will be bringing up. It is a very difficult
issue, and we have a community at risk, the same sorts of
qualitative decisions are being made every day, and so that in
this Committee two years ago we heard a city councilman from
San, I think, Bernardino or one of the Sans out there in
California, and she says, our community is the greenest of the
green, and she said, I am the greenest of the green
commissioners on the city council, and she said, we can't even
build a room on the back of a house to accommodate invalids in
our town because of the Endangered Species Act. She said the
Endangered Species Act is broken from the eyes of an
environmentalist, from the eyes of the greenest of the green,
the Endangered Species Act is broken beyond belief, and you
need to fix it.
I doubt that we hear that testimony here today, but I would
yield the gentleman back his time. Thank you.
Mr. Brown. Mr. Chairman, I yield back my time.
The Chairman. The gentleman from New Jersey, Mr. Holt.
Mr. Holt. Thank you, Mr. Chairman.
Ms. Scarlett, I would like to pursue some of the line of
questioning that Ms. Christensen and others have been following
that really has to do with the environment in which the
scientists operate so that we can have good science.
First of all, you said you were unaware of any gag order at
the Interior Department. Are you familiar with the memo that
was sent to Fish and Wildlife Service employees instructing
them not to talk about the relationship between climate change
and Polar Bears?
Would you call that a gag order?
Ms. Scarlett. I am aware of that particular memo. I could
answer it or I have with me Dale Hall who actually wrote the
memo who could describe its purposes and intent.
Mr. Holt. Well, I have other questions I want to get to, so
let me just ask. Would you call that a gag order when it says,
let us see--anyone approved for travel from the Fish and
Wildlife Service ``will not be speaking on or responding to
these issues.''
Ms. Scarlett. My understanding of the memo which pertained
to some international travel is that we had a delegation going
to a meeting, and an inquiry had come as to what the subject
matter of the meeting was, and the memo was intended to say
that for the purposes of the Fish and Wildlife Service
attending the meeting, their topic was not climate change; that
they were to speak on the topics in which they had expertise,
and that was the intent. It was not intended to be a gag order,
but rather a clarification of what the purpose of the travel
was who was going, and as in any international delegation, to
have assignments clearly appropriated.
Mr. Holt. Well, this gets at my point. It seems to me that
you have a lot of remedial work to do, you and the others
heading the agency, with 30 percent of the staff positions
vacant in the Ecological Services Program, with the top
professional position in charge of Federal endangered species
efforts vacant for the better part of a year. I have to ask
whether people feel comfortable in those jobs, if you are
having trouble filling those positions because it is a very
uncomfortable position to be in, or whether you are choosing
not to fill those positions so that the ESA will not be
enforced.
Ms. Scarlett. Sir, neither of those.
Mr. Holt. Neither of those.
Ms. Scarlett. This Department remains strongly committed to
fulfilling the provisions of the Endangered Species Act, and I
have with me today Bryan Arroya who is actually serving in the
capacity of head of the ESA program to which you allude.
Mr. Holt. Now, there were earlier questions about what
steps have been taken to correct what might be manipulation of
science by a now retired or resigned official, and you seem to
say that you were not making the effort to review and correct
any of the errors that might be in there.
You owe it not just to your employees, and not just to us,
but to the country to do everything you can to restore the
environment of good science there, and that would include
making sure that any errors in science, any manipulation in
science that occurred for whatever reason, political are not,
are corrected, and that the positions are filled with people
who are competent in their area, and that they are told when
hired that they will be free to practice the science.
You have some real remedial work to be done regardless of
what happens to individuals who are fired or who resign, and
other departments have faced this. A few of them have tried to
deal with it, but this is a critical situation throughout our
government--the politicization of science and the disparaging
of scientifically trained staff, and my time has expired, but I
just want to make sure that you understand the seriousness of
the task in front of you.
Ms. Scarlett. Sir, let me reaffirm that where there is
evidence of science manipulation we will act upon it. I take
that challenge and charge very seriously. You will find no
greater champion of integrity in science than myself and this
Secretary, and we will strive to take whatever actions we can
to ensure that that is publicly evidenced as well as
internally.
Mr. Holt. You and he should sit down with every memo that
passed through the hands and that might have been subject to
alterations or manipulation, you should be sitting there at the
table with scientists going through word by word and correcting
those.
Thank you, Mr. Chairman.
The Chairman. The gentleman from Arizona, Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman, and I think much of
the discussion or a big part of it has been about the
Endangered Species Act itself, and the philosophical
differences we might hold here regarding that Act. I want to
get back to the scheduled substance of this hearing which had
to do with manipulation that occurred, and in my mind there is
no doubt, and the distortion that happened to the integrity and
the empirical information that people use, that we use to make
decisions under the Endangered Species Act. That is the
fundamental issue, I think, at this hearing, and I agree with
my colleagues, as they have said, that this is almost a
pathological behavior on the part of the administration, not
only in the Interior Department, but in other departments as
well.
Let me ask, with the exception of the Deputy Secretary, the
three witnesses, part of our responsibilities that our Chairman
talked about at the beginning has to do with the oversight and
remedy that we need to talk about on the issue of distortion,
manipulation, and the debasing of science and fact as part of
the decisionmaking, and if you could for the record and briefly
each one of you a central one or two recommendations that you
mention in your testimony, if you could elaborate on those that
would help guide this committee in terms of oversight and
remedy for the long haul, and we can begin with Ms. Clark.
Ms. Clark. Thank you, Mr. Grijalva.
I will leave it to my colleagues to talk about some of the
transparency and whistle blower issues, but we are quite
concerned, I am quite concerned about the kind of
administrative policies that are under rewrite. I am very
interested in working with the Department.
I absolutely believe in the Deputy Secretary's and the
Secretary's goals, and so whether it is--certainly it might not
be their intent from our perspective the effect of what we know
about the regs that are under revision will seriously, in
essence, rewrite the implementation goals of Section 4, the
listing provisions, the recovery provisions, the consultation
provisions, and clearly I don't know how else to interpret
``delegate to the states'' other than delegate to the states,
you know, states that are ill-equipped to take on some of these
challenges, though I certainly agree that greater participation
and collaboration and openness is important.
So while I was asked earlier whether the Clinton
Administration developed regs to implement the Act, and
Secretary Scarlett answered our purpose quite well, the issue
that concerns me is that while I believe we were working really
hard to make the Endangered Species Act ``function'' better, we
never lost sight of the goal of achieving species recovery, and
through some of the processes that I understand are underway--
of course, not having seen this version of the draft regs--we
stand ready to work with this Department, but I really fear it
is on a fast track, and I urge the Congress to pay careful
attention to the regulatory process underway because what was
not achieve legislatively in the last Congress could easily be
achieved administratively, and that would be a real nail in the
coffin for the Endangered Species Act.
Mr. Grijalva. Yes, I am looking forward to seeing how Mr.
Hall and the Department identify frivolous petitions as we go
along in this process.
If the other witnesses want to make one central
recommendation, I would appreciate that, or a couple.
Ms. Grifo. Yes, I think one of the most important things,
and it has come up several times this morning already, is open
communication. In response to the Department of Commerce media
policy, we have sent a long letter--10 plus pages--to Secretary
Gutierrez about the problems in that Department of Commerce
policy, and we are happy to make that available.
But some of the central things in that are that, you know,
when you become a scientist and work for the Federal
government, you are not giving up your First Amendment rights,
you are not giving up your ability to talk about your taxpayer-
funded research results, and we have to really honor the work
that these biologists are doing and allow them that opportunity
to take advantage of that central pillar of the scientific
method, which is communicating those results, talking about
those results.
To have a Fish and Wildlife Service scientist at a
professional meeting have to not be able to answer a question?
I mean, there is no clear policy that we could find on those
websites. This is something that could happen very quickly. We
have a model media policy that could be adopted tomorrow by the
Interior Department.
Mr. Grijalva. Sir?
Mr. Ruch. I think the central thing this Committee could do
is open up the black box of decisionmaking in the Department of
the Interior. We have heard today about the formation of an
accountability board. We don't know who is on it. We don't know
what standards they meet. We don't know anything about it. We
have heard now about an internal review process that is not
spelled out that no one has heard of before.
If there is a paper trail and a transparent process where
when these changes are made, when the scientists from the
Department are overruled, there is a record and there is a
written justification, we wouldn't have need for this hearing.
The other thing I would add very quickly is that the
ability of civil servants to communicate with the Congress, to
talk to you and your staff, need to have some enforcement
behind it because, to the extent that you have the ability to
see into the opacity of these agencies directly, that would be
a very strong preventative step.
Mr. Grijalva. Thank you, and I think the resignation of Ms.
MacDonald does not remedy the issue that we are dealing with
here, and I would hope that each one of her decisions, each one
of her reviews are looked at very carefully and in a very
transparent way, examined for the appropriateness and to assure
there was no manipulation or distortion of that information.
Mr. Chairman, if I may for the record like to ask you if I
may enter into the record a letter that I and Congressman
Mitchell sent to Director Hall dealing with the de-listing of
the Southwest Desert Bald Eagle, and accompanying information.
Given some of the things that we have all read and heard about
regarding manipulation, I would request that his response be
made available to all the Committee as well.
Thank you.
The Chairman. Without objection, the gentleman's letter
will be made part of the record. And you are asking for written
responses, are you? And we would ask the persons to whom those
questions are directed to respond for the record.
[The letter submitted for the record follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. The gentlelady from California, Ms.
Capps.
Ms. Capps. I concur with the remarks that my fellow
Californian, Mr. Miller, by requesting further questioning of
staff of the Department, if necessary, under oath referred to a
minute ago by Jeff Ruch.
Turn this microphone on so I can face the witnesses, and
thank you for being here today, particularly my constituent who
is our Deputy Secretary Scarlett from my district in
California.
We all understand that the ESA designates critical habitat
in order to ensure the recovery of endangered species. Now, in
2005, the Department issued a rule to cut back habitat along
the Pacific Coast for the threatened Snow Leaf Plover by over
40 percent. I am using the Plover as an example for many such
rules, and its final rule, because I want to highlight the--I
quote from the preamble to the rule on this and many other
examples. The Bush Administration has included the following
statement. I am quoting from that rule, and I have a copy of it
here.
``In more than 30 years of implementing the ESA, the
Service has found that the designation of critical habitat
provides little additional protection to most listed species
while preventing the Service from using scare conservation
resources for activities with greater conservation benefits.''
It is my understanding that some attorneys working for the
Department oppose the inclusion of this statement in critical
habitat designations, being of the opinion that this
inappropriate language.
So I want to ask you, Secretary Scarlett, what is the legal
justification for including this statement in a final rule on
critical habitat designation?
Ms. Scarlett. Congresswoman, nice to see you.
I am not an attorney so I am hesitant to give the legal
justification for that terminology. It is language that was
proposed by the Assistant Secretary Craig Manson, a former
judge and a lawyer. So I would prefer to be able to get back to
you with a legal opinion on that, which appears to be what you
are asking for.
Ms. Capps. I would appreciate that in writing, but while we
are having that conversation perhaps in a non-legal way. There
must have been some reason for putting this statement in the
rule.
Ms. Scarlett. Let me speak in a non-legal way, not trying
to present the legal justification, but for some time now, and
including, I believe, and Jamie could speak to this in the
previous administration, there has been concern that critical
habitat as practiced has not really added advantages to species
or enhanced their survivability, if you will.
One of the things that we have been actually looking at in
the proposed or possibly proposed changes to the ESA
regulations would be language that we think would breathe life
into critical habitat by actually defining it and strengthening
its purposes and role toward recovery. But I think it is in
light of the history of critical habitat which added on to the
context of other protections of the species really didn't add
much value that that language was proposed.
Ms. Capps. And let me ask you a question then about the
value, and what studies there are to determine this statement
that you just made. You aligned it with the previous
administration, but you must affirm it if its presence still in
the rule, that there is no need, you know, for additional
protection.
Is this based on studies?
Ms. Scarlett. Let me clarify. There often is need for
significant protection of species. The issue at hand is whether
critical habitat as implemented has provided that additional
protection, and yes, there are a number of academic studies
that have evaluated critical habitat and its role in helping
species recovery that are very critical of that role.
Ms. Capps. Let me then thank you. I look forward to some
more statements because it says in the--where I quoted, it
says, ``The designation provides little additional
protection,'' so that is in the rule.
Dr. Grifo, you referred to a lot of this in your opening
statement. I am not sure you mentioned the Plover specifically,
but it doesn't matter. I mean, that is of interest along the
Pacific Coast very much, but whether you talk about this rule
with respect to that issue, that species or others, the same
rule has been used many times.
Ms. Grifo. Yes. I would say--I mean, right now we are
looking at about 30 species for possible scientific problems in
the way that they were listed or in the way that the critical
habitat was designated, and I would just like to say as an
aside that really less than half of those, I mean a bit less
than half of those have anything to do with Julie MacDonald, so
this is a much broader problem than that.
Ms. Capps. Right.
Ms. Grifo. We have many, many other specific examples that
we are looking at that at this point do not have her influence
on them.
But I would say, you know, I go back to the Endangered
Species Act. I mean, there is a process under which, you know,
the critical habitat is designated, and if we want to have a
full, open, scientific debate about the value or non-value of
that, then let us have that in the open and draw those
conclusions and move on. But at this point the law that we have
says we will designate that critical habitat, that that is an
important part of the whole process.
Ms. Capps. Just finally if I could add, I know the red
light is on, are you aware of studies on both sides of this
issue or many sides of it?
Ms. Grifo. There are many sides of this issue.
Ms. Capps. Yes.
Ms. Grifo. And I would also say that it depends on the
particular taxa that we are talking about. I mean, depending on
the organism and the way that it uses its range and habitat,
there is going to be a rang of effects.
Ms. Capps. Thank you. I look forward to the written
statement, but I also think we need more questioning.
The Chairman. Let me go to the gentleman from Maryland who
has been very patient and with us from the very beginning this
morning, Mr. Sarbanes.
Mr. Sarbanes. Thank you, Mr. Chairman.
I remember where I was when my 16-year-old daughter told me
she wanted to be a scientist because I was so excited about it,
and the testimony today has left me sort of with a sinking
feeling in the pit of my stomach because my ambition for her,
she will make her own mind, but if she was going to be a
scientist is that at one point she would be on the public
sector side of that and contributing in ways that so many
scientists that you have described are trying to do, and I have
to worry about--you know, we talk about climatic change in the
global sense. There is definitely a climatic change underway
with respect to the scientific community being able to bring
forth its best research.
So the other thing I have sort of been engaged in
informally is my own little research project. I am sitting on
committees that have looked back at some of the overreaching
that is going on with respect to these agencies, and as best I
can tell, maybe there is not a handbook, but there is certainly
plenty of evidence that there might be on how you undertake to
destroy the reputation of government and sell the idea that
there is no such thing as good government in this country, and
the three-point approach is you can either reduce resources
dramatically, which makes it tougher for people to do their
jobs; or you can do outsourcing with no oversight, which then
leads to poor performance which reflects back on the agency; or
you can have political interference of the kind that we have
discussed today.
Everyone does it--sort of customizes, depending on the
agency. We have seen how the army did it in the case of
Sergeant Tillman and Jessica Lynch. We have seen what happened
at GSA over Lorena Doan. We have seen what the Council for
Environmental Quality in the White House did with respect to
crossing out whole portions of the scientific reports on global
warming. We have seen what the Department of Education did with
respect to the Reading First Program. We have seen what the
Vice President and his folks did with respect to the CIA, et
cetera, et cetera, et cetera.
I am going to ask you a question that may sound sarcastic
but it is not. Can you describe to me what you think may be
some of the unique or special vulnerabilities that exist within
the agency that is the focus today to this kind of political
interference?
In other words, if I was out to do the kind of distortion
that you have described, what would be the most effective way
for me to accomplish that?
You have talked about phone calls actually coming into the
field, telling people out in the field to change a number, to
change a sentence, to change a conclusion. That seems pretty
heavy-handed and not particularly sophisticated way of going
about it. But describe to me, what are the particular
vulnerabilities that this agency has, that this program has to
this kind of interference? We will start with you.
Mr. Ruch. Scientific careers are delicate things, and a
career can be derailed in a lot of way that isn't even
considered a formal personnel action. So suddenly not being
invited to conferences, being forbidden from making
presentations, those sort of things are the--and preventing
them from publishing--are the kind of things that are generally
unchallengeable, management discretion that are life and death
decisions for that scientist's career.
There is another layer, and that is the scientists have
almost no legal protection. Generally, what the conflict is--
these scientists they are not whistleblowers. They are not
trying to go on 60 Minutes. They are just trying to do their
job, and there is no overall protection for these scientists
who are basically just trying to do what they have always done,
and for the most part the people that we see are utterly
stunned in that they were doing the same thing they were always
doing. They just weren't paying attention to the political
whims behind them, and when they suddenly recognize that they
were institutionally inconvenient, it sort of shattered their
entire world.
An additional problem is the recent U.S. Supreme Court
decision, Justice Alito's first swing vote, that ruled that
government employees at all levels of government lack any First
Amendment protection when they are speaking as government
employees. That is sort of a devastating decision in terms of
the role, and the rationale was because government owns their
speech.
So for people to enjoy constitutional protection, they
almost have to kind of stand up and rebel, which is itself a
stance fraught with professional danger, and then you add onto
that the utter, almost inapplicability of whistle blower
statutes. So traditionally under the Civil Service Law, in
order to be a whistle blower somebody has to be reporting a
violation of law, and imminent danger, gross waste or
mismanagement, taking out a key recommendation. Watering down a
methodology, suppressing information usually doesn't rise to
that level.
So for the most part you have people that are going into
battle that don't even think that there is supposed to be a
fight without any arms.
Mr. Sarbanes. Yes.
Ms. Clark. If I could respond to that. I think what is most
chilling to me, having spent a lot of time in Federal
government, is there is something special about a career
biologist, a career scientist. They are incredibly passionate,
incredibly committed, and they want to be heard. That doesn't
mean that their decision rules or their recommendation rules,
and that is not what we are talking about here because, you
know, it is important. I mean, let me give you some of the
sound bites I have heard.
It is things like ``I have never seen such disregard for
career biologist opinion. I have never been so summarily
dismissed,'' and then when you have two of the highest ranking
career officials remove from their positions, after
considerable long careers, highly recognized, highly respected,
and shunted off into other positions, that sends this
reverberating chill through the agency that is indescribable.
Many of these biologists are single income or balancing
dual careers, which is very difficult to balance dual careers
in geographic locations, and so what I hear is, you know, it is
easier to shut up. It is amazing that there are decisions being
made that career people aren't even signing off on anymore.
It is one thing to have a recommendation bubble up to
Washington and have a policy decision to do something
different, that is the right of the political appointee. It is
another thing to call down into the ranks of the--I mean, for a
GS-9 to get a call from a deputy assistant secretary is pretty
overwhelming, and the way that the Service deals with that,
which I have found really interesting, is when they are under
fire they start--I mean, you see it in the work that UCS
computed.
What they put on e-mail is truly a cry for help, you know.
``Per Julie, change this.'' So it is very clear to anybody that
is watching that that is what has triggered it. You know, there
were times during my time at the Department where decisions did
not follow the recommendations of the career biologists, but I
do not recall one instance where we forced the changed of the
underpinning information.
Mr. Sarbanes. Thank you for your testimony. I think I am
out of time.
Ms. Grifo. Can I also?
Mr. Sarbanes. Mr. Chairman, can we get one more response?
Yes.
Ms. Grifo. OK, thank you very much.
I just want to further emphasize some of the things that my
colleagues have made, and I would just direct you to--from our
Fish and Wildlife Service survey that we did. One of the
questions is an open-ended essay question, and all of the
responses from the scientists are on our website, and there are
hundreds of them, and you will hear, you know, in their own
words what you have heard echoed here.
But I would also like to broaden it out somewhat because I
believe that vulnerability exists wherever you have science-
based agencies. I believe that, in particular, you know, Fish
and Wildlife is subject to this because it is a regulatory
agency. It is what we are seeing at the Food and Drug
Administration. It is what we are beginning to investigate at
the Environmental Protection Agency, and so on.
So I think there is special vulnerabilities when you have a
science agency that is mixed with the regulatory function
because when we look at some of the other purely science-based
agencies, the National Science Foundation, a great deal of
USGS, we are not seeing problems to this degree. So it isn't
something that is inherent in a Federal scientist. It really
has to do, I think, very much with that regulatory action.
I would just close by saying that we have now surveyed or
asked this question to nine different agencies, and we have 700
scientists that have come back and said to us, ``I am afraid to
talk about the mission-driven work of my agency for fear of
retaliation.'' That is huge.
Mr. Sarbanes. Those are very helpful answers.
Mr. Chairman, I would just note, the last time I checked we
were trying to recruit more people in math and science and
technology in this country in order to compete, and obviously
what we have heard described today is not helping us with that
at all. Thank you.
The Chairman. I thank the gentleman from Maryland.
I recognize the gentlelady from California, Ms. Napolitano.
Oh, I am sorry, I am sorry. Excuse me, excuse me. The gentleman
from Washington, Mr. Inslee is recognized who has also been
very patient and attentive all morning.
Mr. Inslee. Thank you.
Ms. Scarlett, my name is Jay Inslee. I represent part of
the State of Washington. We care very strongly, my
constituents, about the Evergreen State. We want the Federal
government to follow the law in protection of our salmon, and
our orcas and our owls and our murrelets, and the sad fact is
that under your leadership, we have negligence, incompetence,
and political hackery.
I have to tell you that I am more upset after this hearing
than I was beginning listening to this situation because a fish
rots from hits head, and this Julie MacDonald situation is not
some rogue employee that has run countercurrent to this
administration and this leadership, and you have shown a
stunning lack of awareness of that or willingness to deal with
this situation, and I want to know about your involvement in
these decisions.
I am told that you are Julie MacDonald's supervisor, or at
least in her management above her, is that correct?
Ms. Scarlett. I am not her supervisor. I am as Deputy
Secretary, of course, the number two in the department. She
reports or she reported to the acting assistant secretary and/
or assistant secretary.
Mr. Inslee. And were you the person who specifically
refused to follow scientific information when you were on this
``Washington Oversight Committee'' that overruled the
scientists and the recovery team that worked assiduously to
create an option for the Spotted Owl recovery plan, and you
came back and told them that you didn't want them to have a
recovery with designated territory for the owl? You wanted a
different approach, and said that you should look at new
science even though those scientists specifically told you that
that science should not be perverted to be used to do exactly
what you did. Was that you who did that?
Ms. Scarlett. That is wildly incorrect. We have a recovery
team, a recovery planning team that prepared a draft recovery
plan for the Northern Spotted Owl. When we met with that team
as they presented the draft to a group of us, and I was part of
that, I did three things.
First, I commended them on an outstanding report. I did
suggest as they go through the draft that they might want to
re-organize it a little bit for clarity and readability.
Second, in the report they noted that the Bard Owl was a
significant threat to the Northern Spotted Owl, and yet the
recovery plan actually presented no information on how to
address the Bard Owl, so we asked if there was any science or
any method to perhaps include Bard Owl and address that issue.
And the third thing that we did was to say, given that this
is a very large landscape scale challenge, would it be
possible, and it was a question, would it be possible to
develop a second option--one option that was based on lines on
a map for conservation areas and a second that would be based
on performance rules and an adaptive management approach.
They presented us with a final draft, which included both
options, the original and that one. The science was absolutely
unaltered and remained the same in both of them.
Mr. Inslee. You were specifically told that the southern
range information should not be used to eliminate the mapped
owl recovery areas, and that is exactly what you suggested to
be done, and in fact the option that was generated eliminated
the owl recovery----
Ms. Scarlett. Sir, that is inaccurate. That is simply
inaccurate.
Mr. Inslee. OK, well, let me ask you. Did the option two
eliminate the mapped owl recovery areas? Just tell me. Did it
or not?
Ms. Scarlett. What option two does is to present using the
exact same science in an adaptive management approach.
Mr. Inslee. Listen. I am going to ask the question.
Ms. Scarlett. So we have retained both options----
Mr. Inslee. You will excuse me, but I will ask the
questions.
Ms. Scarlett. Yes.
Mr. Inslee. We have a ceratin responsibility in this
democracy and right now I will be asking them and you will be
answering them.
Ms. Scarlett. That is right, and I----
Mr. Inslee. And my question is did option two eliminate the
mapped owl recovery areas? Yes or no?
Ms. Scarlett. Option two presents an adaptive management
approach to addressing the recover of the Spotted Owl using the
same science.
Mr. Inslee. I am going to ask this question until I get an
answer. Did the option two eliminate the mapped owl recovery
areas? Let us get this over. It did, didn't it?
Ms. Scarlett. Option two is an adaptive management
approach.
Mr. Inslee. It eliminated the mapped owl recovery areas,
didn't it?
Ms. Scarlett. It is an adaptive management approach.
Mr. Inslee. And your answer is yes, isn't that, correct?
Ms. Scarlett. Sir, these are management options. They are
not about science. The science is the same in both of them. And
so my answer to you, if you are asking about any change in
science, there was no change in science. They read exactly the
same.
Mr. Inslee. Ma'am.
Ms. Scarlett. One uses lines on a map for the management
approach, and the other uses an adaptive management approach.
This was agreed upon by the recovery plan team in full, and
both options are in the recovery plan proposal on the street.
Mr. Inslee. Ma'am, you have grossly undervalued my sense of
persistence and patients. A mapped out recovery area is an area
commonly defined in the English language and in biology--my dad
was a biology teacher so I have some background--that basically
gives a geographic protection of the range of the Spotted Owl.
That is very important as the science have told you on repeated
occasions.
When the scientists in the recovery team came to you and
suggested an option that retained those MOCAs, mapped owl
recovery areas, you, as a political appointee without a science
degree, came back and said that is not good enough for us. Send
us an option that does not include mapped owl recovery areas,
and I am going to ask you a really simple question, and there
is no excuse not to answer this yes or no.
Does option two include mapped owl recovery areas?
Ms. Scarlett. Sir, option two is an adaptive management
approach and no scientist at anytime came to us and said we
absolutely needed the mapped approach. That is simply an
inaccurate statement.
Mr. Inslee. Ms. Scarlett, I was hopeful going into this
hearing that this debacle at the Department under the
leadership of the new Secretary of Interior that we would hope
to reorient this agency to do the job for the American people.
But your abject refusal to even recognize a simple fact that
because of your political decision you asked scientists to come
back with something that eliminated the principal protection--
let me finish.
Ms. Scarlett. Sir, I did not do that.
Mr. Inslee. No, excuse me.
Ms. Scarlett. The premise is simply wrong, and I will not
answer the question in that way.
Mr. Inslee. Fine. Well, I am just telling you I am still
hopeful that the Secretary can help clean up this agency, but I
think it would be helpful to have your resignation because you
refuse to recognize how sick this situation is, and your
refusal to cooperate on this issue in a host of ways, including
the simple recognition of what happened here, I think you ought
to give serious consideration to turn this post to somebody
else who can help re-orient this agency. The country deserves
it. The new Secretary deserves it.
Ms. Scarlett. Sir, I uphold science and its integrity as an
absolute imperative. The premise of your question is simply
inaccurate. Whatever that information was provided to you is
not accurate.
I was at no time told that the mapped recovery option is
the only scientifically valid option, and incidently, I do have
a letter from someone on the recovery team who is alleged to
have made that comment, and who categorically refutes it.
Mr. Inslee. I would have more. My time is expired.
The Chairman. The gentlelady from California, Ms.
Napolitano.
Ms. Napolitano. Thank you, Mr. Chair.
What I am hearing and what I have been listening to on the
video conference is very, very distressing. The administration
during the last several months, I believe it is Ms. Scarlett,
de-listed the Virginia Northern Planes Squirrel, has de-listed
the grizzly bear, and is talking about down listing the
Manatee. Meanwhile, there are a number of other candidate
species that are eligible for listing. It is growing. But there
is no effort being made to list any of these.
How are we going to recover endangered species if they are
not listed? Some day the human being species may be on the
endangered list.
Ms. Scarlett. Let me say first that the decisions on the
Grizzly and the other species that you mentioned are--since the
matter here is a discussion of science--each of those species,
according to the Fish and Wildlife Service and with no
interjection or intervention from Washington, had determined
that those species had met their recovery goal. According to
the Act, therefore, they moved, and this has been a many, many,
many year process in the making for several of those species,
they moved toward proposing those de-listings.
With the Manatee, that has not yet occurred. What has come
out is a five-year status review of the Manatee. That is a
science report, and that science report indicates that the
trends for the Manatee show that it is not any longer in danger
of extinction. But whether they act upon that to actually
propose a de-listing or a down listing, I believe in the case
in question, has not yet been undertaken.
The Service does continue to list species, and it has a
balancing act of doing the critical habitat designations,
recovery planning. I am pleased to say they have accomplished
by 2008 some 88 percent of all species listed more than two and
a half years will have a recovery plan, and that is an
extraordinarily important step in the protection of these
species.
Ms. Napolitano. Well, then I would pose the question to
you, what happened to the Bull Trout? I am reading some of the
testimony that he submitted for today's hearing. He is former
Bull Trout coordinator of Fish and Wildlife Service and
discussed the role the scientists played in providing peer
review for the recovery plan, and a five-year status review for
the Bull Trout. That was back in 2004.
Ms. Scarlett. I am not familiar with the Bull Trout issue
that you are describing in particular.
Ms. Napolitano. I am sorry.
Ms. Scarlett. We can get more information for you.
Ms. Napolitano. OK, because I would like to have that
writing because despite those efforts the recovery in the five-
year species review were never finalized, and I would like to
have that in writing, Mr. Chair.
And I certainly, listening to the gentlemen, I would hope
that nothing ever deters a public servant from talking to a
Member of Congress. I don't care if they call them a whistle
blower. They need to help us protect our species, and help us
be able to hold administrators accountable. That is the role we
should be playing. There should be no deviation from that. That
is law, and we should not deviate from that, and I would
admonish any administrator that they should also keep in mind
that they work for the general public. Although the
administration may have appointed them, their responsibility is
to the citizens and to those charges that they have been given.
Thank you, Mr. Chair.
The Chairman. Thank the gentlelady. The Chair has a
housekeeping matter. We do have a series of votes on the House
Floor currently underway. The Committee will stand in recess
until 1:30, and would ask this panel, I know it has been a long
morning and we appreciate your patience and responses, if you
would come back at that time because there are a second round
of questions from members that are not here now but they will
return at that time to ask a second round of questions.
[Recess.]
Mr. DeFazio [presiding]. The Committee come back to order.
Chairman Rahall will be back around 2 o'clock, and I will chair
during the interim, so we will pick up where we left off. Are
we on the Republican round or the Democratic round? Do you
know?
Mr. Sali. I think it is your turn.
Mr. DeFazio. OK. All right, all right. Thank you.
Mr. Sali. And then it is mine.
Mr. DeFazio. Yes, I understand that. I was being fair there
in asking. I left when Grace was asking questions.
I would like to address some further questions to Ms.
Scarlett. The oversight team which you chair, how do they each
decisions? What sort of process do you follow? Is it consensus?
Do you have votes? How do you do it?
Ms. Scarlett. You are talking about the Northern Spotted
Owl recovery team oversight group?
Mr. DeFazio. Yes.
Ms. Scarlett. OK, because that----
Mr. DeFazio. Well, there is an oversight committee that has
a list of people, Jim Case and Lynn Scarlett, David Verde,
Julie MacDonald, Julie Jacobson, et cetera, et cetera, that I
assume that is that group.
Ms. Scarlett. Yes, and that group, just for clarification,
is solely focused on the Northern Spotted Owl recovery plan.
Mr. DeFazio. OK. Good.
Ms. Scarlett. It is not a standing committee that does
other things.
Mr. DeFazio. OK.
Ms. Scarlett. Basically, what it really is is a review team
more than an oversight team I would characterize it as. There
is a recovery planning team. That team includes many
scientists, the Fish and Wildlife Service leads that team, but
it also has representatives from the Forest Service, the Bureau
of Land Management, and other entities. They worked out in the
Northwest to develop a recovery plan for the Northern Spotted
Owl. They brought in that recovery plan in draft form for the
oversight team to review.
One of the reasons that that review is so important----
Mr. DeFazio. And that is the plan that was rejected and
sent back, and when they asked for modifications?
Ms. Scarlett. Well, let me clarify because it really was
not rejected and sent back. It was an excellent plan in a draft
form, which I verbally praised because it was an excellent
plan, but there were, as I said earlier, three challenges to
it.
Mr. DeFazio. Right.
Ms. Scarlett. On, in its structure it was difficult to
read. It was organized in a kind of backwards way, so we
suggested that when they go back and do the redraft they write
it in a different order, same words, but different order.
Mr. DeFazio. Sure.
Ms. Scarlett. As I mentioned----
Mr. DeFazio. I understand.
Ms. Scarlett. OK.
Mr. DeFazio. And at what point did you ask for option two
to be developed?
Ms. Scarlett. So at that meeting in which we had the Forest
Service and the Bureau of Land Management and others reviewing
the option one, I believe it might have been the Forest Service
that asked the team or the two representatives who were there
presenting it, they asked them--you have presented a plan that
actually draws lines on a map for the recovery areas. Is there
a way to do this differently? Are there other options?
And the team said this is just one option. There are other
ways to go about doing this recovery.
Mr. DeFazio. The team of scientists in the Northwest by
consensus said that they thought there were other options
available?
Ms. Scarlett. The individuals, the two individuals that
were representing the team at that meeting.
Mr. DeFazio. So two individuals who were representing that
team made that recommendation. OK.
So when you asked for development of the second option, see
how accurate you think this is. This is from a chronology
provided by the Audubon Society, and they say, October 26-27,
full team met. ``Mr. Lohoefner admitted Forest Service, BLM,
were driving the recovery plan revisions demanded by the
oversight committee,'' which is consistent with what you just
said, ``and stated that the end product would have to be
flexible enough to be acceptable to the Forest Service and
BLM.''
Is that correct? I mean, that is sort of what you are
saying, that they wanted that.
Ms. Scarlett. I can't speak to the conversation that Rhen
might have had.
Mr. DeFazio. Right.
Ms. Scarlett. All I know is what we discussed at the
meeting that I attended. I can't speak to conversations that
Rhen or others had subsequent to that.
Mr. DeFazio. Sure. But prior to that, on October 19, there
was an e-mail from the Pacific Region office that said, ``The
team will no longer make decisions by consensus.'' Is that
correct?
Ms. Scarlett. I don't know. I don't recall.
Mr. DeFazio. OK. But it seems like you usurped their
decisionmaking process. Then we had two members of the team in
Washington who agreed to be driven by the Forest Service and/or
BLM at some level. We are not certain which.
Then it went on to say, and to quote, ``Ensure we are
exploring the options described by the decisionmakers.'' That
would be the oversight team, is that correct, the
decisionmakers?
Ms. Scarlett. I would assume they are referencing the----
Mr. DeFazio. Yes. Well, this is not an official Wildlife
Service memo. Maybe you are not particularly familiar with
that, but it seems like that would probably refer to the
oversight, the oversight team.
Now, the oversight team, it seems, got a little later on a
bit more prescriptive about what they wanted in option two,
which was in fact e-mails that came, and I believe one of them
was, and I have moved places here so all my voluminous papers
are--here we go.
``We just received new direction from Lynn Scarlett, Deputy
Secretary of the Interior, concerning the NSO recovery plan.''
We are now into early January. It says, ``Both options are due
in Washington by February 5. These options are to address the
recent direction we received from D.C. Two Word files are
attached below.''
And it is very specific about de-linking option one, and I
mean, there is very many prescriptive sorts of things. So you
are saying this was generated locally by the scientists and at
the direction or, or just sort of the inquiry about a little
more flexibility for Forest, but this is awfully prescriptive.
There is actually five major points here about how you would
develop option two, which are very prescriptive.
Do you remember that?
Ms. Scarlett. I do not, and as a matter of fact, the
meeting that I attended we did not give prescriptions. Again,
we simply said is there a way to do another option. We think it
is good policymaking on something this complex to be able to
have several options to consider, all of which used the same
science and are focused on recovery.
That particular memo may be somebody's notes or----
Mr. DeFazio. Mr. Wesley, and it has dates and, you know,
all the facts.
Ms. Scarlett. I don't know what they are but I certainly
never gave any five-point directive or seven-point directive or
whatever it is.
Mr. DeFazio. OK. But now that essentially option two has
become the preferred alternative of the oversight group, how
did you reach the determination? Was that again by consensus or
vote or did it just sort of come out?
Ms. Scarlett. I don't know that that is correct. I believe
that the recovery plan that is out for review, the proposed
recovery plan puts both options forward.
Mr. DeFazio. OK. So then you are not favoring option two at
this point in time? They are both out for discussion?
Ms. Scarlett. I believe they are both out for discussion.
Mr. DeFazio. OK. What science was used--we have talked a
lot about science to develop option two, because there are--it
says here, and this is another memo, this is earlier--sorry to
jump around. This is dated October 18, and this was after the
first discussion in Washington about maybe having some more
flexibility and asking that the draft be somewhat revised.
And point 1[a] is emphasized, ``The new science indicating
habitat variability across the range and de-emphasize the
past.''
Ms. Scarlett. Let me clarify again. The science for both
options, both the MOCA option, the mapped owl conservation area
option, and option two utilize the same science, but that
science that you are referencing pertains to there had been an
earlier perspective that owls favored only old growth forest
areas.
Some more recent science suggests that that picture is much
more complex.
Mr. DeFazio. And so the recent science would be then
references to the Olsen study, and the Franklin study, is that
correct?
Ms. Scarlett. I don't know, sir.
Mr. DeFazio. OK. Well, those seem to be what is being
relied upon here since they are the only two studies extant
recently in the literature which questioned the range and
viability.
Ms. Scarlett. And they were relied upon, by the way, for
both options. I want to underscore that.
Mr. DeFazio. Well, that is unfortunate because the author
of the Olsen study says, and it says actually within the
published version, ``We do not recommend that the forest
managers use our modeling results as a prescription for
managing habitat either within the Oregon coast range or
elsewhere until similar studies have been conducted. Likewise,
the small amount of variability in fitness parameters
attributable to habitat variables in our models should not be
used to argue that habitat has little influence on owl
demography.''
So I guess maybe we relied more on the second one from Mr.
Franklin since that one says don't use this to change anything.
Ms. Scarlett. Sir. Sir, the recovery planning team utilized
the science that it had available, the best available science.
Mr. DeFazio. OK. So your review group just sort of
cursory----
Ms. Scarlett. We did not----
Mr. DeFazio.--and you didn't really review these things----
Ms. Scarlett. We did not----
Mr. DeFazio.--and you don't understand the underlying
science.
Ms. Scarlett. Sir, we did not question the science that was
presented to us.
Mr. DeFazio. OK, but if this is accurate.
Ms. Scarlett. The report----
Mr. DeFazio. If that is the science that was used and the
scientist who created it said that, do you think you should
base a plan on it?
Ms. Scarlett. The plan, it is my understanding in my
discussions with the Fish and Wildlife Service, is not based on
a single scientific study.
Mr. DeFazio. OK. No, we have a second one. Here we go.
Ms. Scarlett. But rather----
Mr. DeFazio. Mr. Franklin is the only other--Allen
Franklin--the only other study extant which questions this
same, the habitat, and he says in a letter, as he and his co-
authors have repeatedly noted, their data is just a first
approximation and ``in itself should not be considered
definitive.''
So the science on which option two is based, the authors of
the science say it shouldn't be based there, but you are saying
that we had spontaneous movement in this direction, just a
couple members of the team showed up and the Forest Service----
Ms. Scarlett. No.
Mr. DeFazio.--and BLM, and it was not directed by you or
anybody else on this oversight team that this option be
developed, that you follow this new science, and all that it is
just sort of a coincidence we ended up here.
Ms. Scarlett. No, sir, that is not what I am saying. What I
am saying is that there is science on the Spotted Owl and the
kind of habitat it needs, and the kind of threats that it has.
The recovery planning team looks at the composite of that
information.
Mr. DeFazio. OK, what does your group do in terms of
looking at the work of that team?
Ms. Scarlett. And then that group wrote a draft recovery
plan. That plan----
Mr. DeFazio. We are repeating ourselves. We are up to the
current----
Ms. Scarlett. If you would like to understand the process,
I am trying to go through it.
Mr. DeFazio. OK.
Ms. Scarlett. Because it was really fairly straightforward.
Mr. DeFazio. Very.
Ms. Scarlett. The material comes in. We look at it. It
looked good. It looked as though it was going to be at least a
way from a land management standpoint to try to achieve
recovery goals. But because we are talking about a large
landscape scale, because we also were told, including in the
recovery plan science information itself, that this was a
dynamic situation, and that they were learning more about the
bird, we asked in light of that whether it would be prudent to
have an adaptive management approach.
Those at the table said we can go back to the group and see
so that----
Mr. DeFazio. Who were those at the table? Which two members
of the team?
Ms. Scarlett. I don't recall.
Mr. DeFazio. OK.
Ms. Scarlett. It was the Fish and Wildlife Service, the
lead----
Mr. DeFazio. It would be useful for you to provide those
names to the Committee.
Ms. Scarlett. We could provide that.
Mr. DeFazio. Thank you.
Ms. Scarlett. And those individuals said we can explore
this. We will go back to the recovery planning team. They did
and the recovery----
Mr. DeFazio. And are you aware that the team by consensus,
which was no longer allowed having adopted the further one, was
not very happy with this directive?
Ms. Scarlett. I don't know their disposition. I did not
speak to them directly, but what I am told is that they rolled
up their sleeves and they developed a second option, and I am
told that at least at the point in time at which it was
advanced to us that there had been consensus on that option.
Again, remembering that like the NEPA process where we ask
ourselves for good management decisions to have options, this
was about giving us some choices to reflect on, and the public
because both options are out for public review.
Mr. DeFazio. Sure. This has nothing to do with the desire
of the agencies to target the last remaining old growth in
Pacific Northwest and a desire of those agencies to pick up the
harvest by targeting those areas. Nothing at all.
Ms. Scarlett. I believe----
Mr. DeFazio. This is all about the owl and its recovery and
the ecosystem.
Ms. Scarlett. I believe the agencies in question who have
large areas of land to manage up there were looking for
recovery planning options that would give them some guidance
and ability to help both fulfill their mission and at the same
time----
Mr. DeFazio. Well, unfortunately, there is also a legal
mission that is required.
Ms. Scarlett.--recover the----
Mr. DeFazio. And I am afraid you are going to be tested
legally if you pursue option two, and I think you would be
found wanting and we will be back right where we were with Cy
Jamison in Bush one which is under injunction and losing what
little timber harvest we have left.
Thank you. My time has expired.
Mr. Sali.
Mr. Sali. Thank you, Mr. Chairman.
Ms. Scarlett, I just want to state for the record that I
appreciate your effort to respond today in spite of being cut
off repeatedly, in spite of being, I think, really demeaned
today, and I want you to know I appreciate your service to the
country, and the difficult job that you have.
Ms. Scarlett. Thank you.
Mr. Sali. Ms. Clark, do you believe that science is the
factor that should drive all determinations for a listing?
Ms. Clark. I think, Congressman, that science is the
foundation upon which decisions are made, and by law the
decision on whether or not to add a species to the list is by
law made on the best available science.
Mr. Sali. And that should be our sole criteria for a
listing?
Ms. Clark. For determining whether or not a species should
be afforded legal protection, it is science.
Mr. Sali. And do you think the same thing is true for
designation of critical habitat?
Ms. Clark. Well, by law, designation of critical habitat is
based on the best available science, and scientific and
economic considerations, and so that is a part of the law where
economics, the economic impacts and benefits are weighed as
well.
Mr. Sali. And so we shouldn't just use science when we are
making a determination for critical habitat for a listed
species, is that correct?
Ms. Clark. Oh, current law suggests otherwise. Current law
allows for both science and the economics to be factored in.
Mr. Sali. And when the agency is carrying out a five-year
species review, should science, best available science be the
sole standard that we make those determinations by, whether
there should be a change or not?
Ms. Clark. When determining whether a species is endangered
or threatened, science should be the dominant factor.
Mr. Sali. I am asking about the five-year species review
that the agency is required to----
Ms. Clark. Well, the five-year species review is to
determine status. Is an endangered species still endangered?
Mr. Sali. Right.
Ms. Clark. Should it be threatened? That, sir, is a
scientific underpinning because it is the status of the species
that is being evaluated.
Mr. Sali. And Dr. Grifo, do you agree with the comments
that Ms. Clark just made?
Ms. Grifo. I do.
Mr. Sali. So that best available science should be the sole
factor for listing. Do you agree with that?
Ms. Grifo. That is the law.
Mr. Sali. And you believe that for designation of critical
habitat it is best available science and economic
considerations I think----
Ms. Grifo. That is the legislative framework we have, and I
think that underscores why it is so important that we get the
best available science, and have that, because it is so
important in making these decisions.
Mr. Sali. And best available science should drive the
species review whether to continue a listing in its then
current form or change it to some other designations. You agree
with that?
Ms. Grifo. I would agree with Jamie Clark, yes.
Mr. Sali. And so for both of you, I guess I am asking, do
you think we ought to just follow part of the law or all of the
law?
Ms. Clark. Do you think we should just? I didn't hear.
Mr. Sali. Should the Fish and Wildlife Service be required
to follow all of the law or just part of the law, or can we
just pick and choose what we want to follow?
Ms. Clark. Well, it never occurred to me that agencies
could pick and choose what part of Federal law they would want
to follow, sir. So my assumption is that the Fish and Wildlife
Service would follow all the laws that they are charged with
overseeing.
Mr. Sali. Well, I am looking at 16 U.S.C. 1531[b] which
deals with the listing decision, and it requires, and I am
quoting from the statute, the determination be made ``solely on
the basis of the best science and commercial data available.''
Commercial data, does that indicate to you that there is
some economic impact in the listing decision or not?
Ms. Clark. It does not actually. The commercial data part
of that, I believe, was intended to take into account
international commerce, trade, and things like that. It was
never to bring into account the economic impacts of----
Mr. Sali. You would agree that that is not best available
science though when we start talking about those areas,
correct?
Ms. Clark. Well, it affects the status of the species.
Absolutely, I would agree that it does that.
Mr. Sali. And so it would be correct----
Ms. Clark. The trade in the species, the commercial impacts
of utilization of the species, that is the kind of commercial--
--
Mr. Sali. It would be correct to say--I am sorry. It would
be correct to say that best available science is not the sole
driving consideration under a listing decision because the law
requires inclusion of commercial data available in making and
conducting that decision, correct?
Ms. Grifo. The other part of that is that, you know, for
many species the science is part of that commercial data. I
mean, that commercial data is often based on a scientific
process, and I think, you know, the source is not nearly as
important as making sure that we have a direct conduit----
Mr. Sali. I want to make sure----
Ms. Grifo.--from the suppliers to the process.
Mr. Sali. OK, on that point I want to make sure I
understand. You are saying that that trade between countries is
a scientific determination.
Ms. Grifo. No. What I am saying is that in certain
instances commercial data may also be related to scientific
information. Fisheries, for example, a lot of the information
that we have on fisheries is very well collected under a
commercial framework. That is all we are saying, and that in
many instances----
Mr. Sali. Wouldn't that be scientific information though at
that level?
Ms. Grifo. Well, if it is peer reviewed, if it goes through
a scientific process. You know, there are other determinants of
what is science. If it is evidence-driven, if it----
Mr. Sali. Other determinants. So you would be changing your
testimony about----
Ms. Grifo. No.
Mr. Sali.--best available science?
Ms. Grifo. If it is evidence-driven, you know, it becomes
part of a scientific process.
Mr. Sali. Well, is it science or is it commercial data?
Ms. Grifo. In some instances, it could be both, and that is
not a detriment to the science nor is that a detriment to the
commercial data. It is simply an instance in which population
information is sometimes based on fisheries' data on catches.
Mr. DeFazio. So your testimony is that----
Ms. Grifo. But traditionally in the Act----
Mr. DeFazio.--commercial data is science?
Ms. Grifo. No, that is not what I have said. Let me be
clear. We can talk about a definition of science and what is a
scientific process and what is not a scientific process, and
then we can take that framework and we can look at what comes
in from commercial sources, and we can evaluate through a
scientific process, through an evidence-driven process whether
that is appropriate information to take into account. That is
all I am saying.
Mr. Sali. Should commercial data, as required by the
statute, be included in the listing decision that is not
scientific data?
Ms. Clark. It hasn't thus far. I mean, I am not sure I am
following your question, Congressman. But the clause, the
listing criteria, the clause that we are talking about, the
link of the commercial data is to the science status of the
species, and that science process that informs the decision.
They aren't independent issues that are weighed.
Mr. DeFazio. Well, do you believe that science or
commercial data?
Ms. Clark. I believe that commercial----
Mr. DeFazio. The information you are talking about that
should be considered.
Ms. Clark. It all relates to the status. Science which can
subsume the commercial information is what informs the decision
on status of a species.
Mr. Sali. Do I understand your testimony then to be that
notion of commercial data is just surplusage in the language of
the statute?
Ms. Clark. No, not at all. I would agree 100 percent with
Dr. Grifo's recitation of the fisheries instance, for example.
Mr. Sali. Well, let me approach this just a little
differently here. When you were hired by the Defenders of
Wildlife, do you believe that that organization took your
political views into account in making that decision?
Ms. Clark. That was never a part of my interview. No, I
don't believe that they did.
Mr. Sali. Do you think it is very likely that Ms. Scarlett
would be hired ever by the Defenders of Wildlife?
Ms. Clark. I wouldn't suggest one way or the other. I would
certainly--I am not the hiring official, but certainly I
believe that Secretary Scarlett could--I would love for her to
apply. I mean, you know, that would be fine.
What is important to people----
Ms. Scarlett. I might be looking for a job after this
meeting.
Ms. Clark. That is right.
[Laughter.]
Ms. Clark. That is right. What is important to Defenders of
Wildlife, if we want to talk about my organization, is a
commitment and a passion to conserve wild plants and animals in
their natural communities.
Mr. Sali. Do you think there is a political dynamic in this
hearing today?
I mean, it seems like the people on this side of the
benches tend to agree more maybe with the work that Ms.
Scarlett has done, and the folks on that side tend to agree
with the points that you are trying to bring.
Do you think there is a political element in this hearing
today?
Ms. Clark. Well, actually, Congressman, what is interesting
for me is it seems like it is not much difference in that in
previous congresses it was just literally flipped.
Mr. Sali. And so the politics--I guess my point is this.
You represent, and Dr. Grifo, I would be happy to hear your
comments on this as well, you represent nonprofit organizations
that in my view pretty clearly have a political bent, and your
testimony before us is that we are encouraged to believe
essentially your position, and not trust what the Fish and
Wildlife Service has been doing, and so I am wondering if it is
OK for politics to be a part of your organization, and for you
to come and advocate certain things in front of this Committee,
but it is not OK for the government agencies to have anything
political as a part of their work on the Endangered Species
Act.
Why is it we should take your testimony as the gospel truth
and follow everything you suggest, and not listen to the
agency? Why is it OK for there to be politics involved in your
opinions but not in the government agency?
Mr. DeFazio. I am going to suggest that you want to hold
that thought because I went over by six minutes, the
gentleman's----
Mr. Sali. Mr. Chairman, I want to point out that you went
over by five minutes your first turn, and by nine minutes your
second.
Mr. DeFazio. Nine?
Mr. Sali. Yes.
Mr. DeFazio. OK, we will give you--OK, I thought it was
six. I must have gotten it upside down. Let us hear the answer,
please.
Ms. Clark. I will give you a couple of answers to that.
First, yes, I am representing proudly Defenders of
Wildlife, but I am also representing a 20-year career in the
Federal government, including a big chunk of time as both a
career biologist and as director of the Fish and Wildlife
Service. So I believe I come with more than just my Defenders
of Wildlife knowledge.
Yes, I think it is a huge disappointment that we have
reduced the importance of a law like the Endangered Species Act
to a political debate. This is not about making ``political
decisions'' based on a science framework. Administration after
administration has the opportunity to do that. Some get caught.
Some go through the gauntlet.
What we are talking about is if in fact the science
underpinning by which political appointees make decisions has
been tinkered with or disrupted to change the foundation. That
is what I presumed this hearing was about. It is not to suggest
that political appointees of either party can't make a
decision.
Mr. Sali. And Ms. Clark, I appreciate the comment that you
just made because I do believe that this whole area is just
riff with really partisanship and I want to state for the
record that I do believe that the work of protecting species is
important work. You know, whether we get into a debate about
the law, whether we have commercial data or best available
science as a standard, you know, is that really getting the job
done, and I am not sure that it is.
I hope you will excuse me today for, I think, what were
some fairly pointed questions. My intent was to get to this
notion that politics does seem to be driving this, and I am
going to suggest on both sides of the aisle, and in the
meantime the species that we all, I think, are hoping to
protect are not getting the benefit of the best work that we
can give them. Thank you.
Mr. DeFazio. I thank the gentleman.
Ms. Grifo. Could I respond?
Mr. DeFazio. Who is that? We are way over, but just go
ahead.
Ms. Grifo. Very quickly. Very, very quickly.
I mean, I think that we can agree absolutely that obeying
the law as written is not a partisan issue. I think we can
agree that valuing the science is not a partisan issue. I mean,
these are things, these are values that I think pervade, you
know, both sides of the aisle, and very importantly.
But I think the important thing here is that, you know,
what we are bringing forward is not our word. You know, you
don't have to believe us. It is the documented examples of
things like, you know, tract changes where the science is
changed. I mean, that is clearly a partisan issue, and together
we should agree that fixing that and making sure that that does
not happen, because we all value the science, is an issue that
is truly nonpartisan. Thank you.
Mr. DeFazio. Thank you. Mr. Inslee.
Mr. Inslee. Thank you.
Ms. Scarlett, you have interjected some levity but I have
to return to a real serious issue. First, I want to ask you
what does MOCA mean in this context?
Ms. Scarlett. Mapped owl conservation area.
Mr. Inslee. Has that ever been changed to managed owl
conservation area?
Ms. Scarlett. Yes.
Mr. Inslee. And in October 18, 2006, what was the
definition of MOCA?
Ms. Scarlett. Say that again.
Mr. Inslee. In October 18, 2006, what was the definition of
MOCA?
Ms. Scarlett. Sir, I don't know if there was a different--
if that acronym was used with a different set of words at that
time.
Mr. Inslee. Well, it is either mapped or managed owl
conservation areas, right, one of the two?
Ms. Scarlett. That is my recollection.
Mr. Inslee. And it is specifically designated geographic
areas for the protection of Spotted Owls, right?
Ms. Scarlett. As used in the context of the recovery
planning process, yes.
Mr. Inslee. Now, I had asked you earlier if your committee
which you chair required the planning teams regionally to
present to you an option that eliminated the MOCA concept. As
best I could tell, you hadn't.
I want to refer you to a memo dated October 18, 2006,
titled ``Northern Spotted Owl Recovery Plan Options''. Have you
seen that document before that is before you?
Ms. Scarlett. I am looking at it right now, I think.
Mr. Inslee. I have been told that it is a memo generated by
your committee and sent back to the region to basically
encapsulate your direction to them from your committee, from
this Washington Recovery Committee. Is that what that is?
Ms. Scarlett. I believe what this might be is a summary. It
was not generated by me, but I believe subsequent to the
meeting one of the members of the committee tried to summarize
and capture what the discussion was, so I think it is better
characterized not so much as a direction as it was a summary of
what was the conversation on next steps.
Mr. Inslee. Well, it says, ``The recovery team will develop
two options that tier off the existing draft recovery plan,''
and then it has further information.
Ms. Scarlett. That is correct, and that was a summary of
the conclusion of the meeting.
Mr. Inslee. And on page two, I refer you to paragraph two,
which is option two as I understand. It says, ``Provincial
habitat targets,'' and then it has bullets, and if you read
along with me, it says, ``Eliminate the MOCA concept and
instead establish provincial habitat target.''
Do you agree that is what it says?
Ms. Scarlett. I agree that is what it says.
Mr. Inslee. And wouldn't you agree that this memo, which
appears to be the summary of what you did, called for
eliminating the MOCA concept?
Ms. Scarlett. No, I do not agree to that statement because
we did not conclude that we would eliminate the concept. What
we asked for was option one, which retained that concept, and
then adding to that option two so that we would have two
options to consider.
Mr. Inslee. And you ordered them to come up with an option
two that eliminated the MOCA concept, didn't you?
Ms. Scarlett. We asked them to come up with a concept that
utilized adaptive management, sir, based on the same science
foundation. If the issue today is the interference or changing
of science, the science foundation, for anyone that reads both
options, reads exactly the same.
As managers and as the discussion that Mr. Sali just
presented indicated, it is incumbent upon us to try and figure
out what are the best management options to achieve recovery
goals. We put forth--we asked the team to come up with two, the
one they had originally come up with, and an alternative so
that we could consider both, and that is what has been done.
Mr. Inslee. Ma'am, I have given you every chance in the
world to honestly answer this question.
Ms. Scarlett. And that is an honest answer.
Mr. Inslee. Every chance in the world, including the
memorandum from your own committee saying what you did. I am
just telling----
Ms. Scarlett. Sir, that is an honest answer because if you
look at this document, it includes option one, which still has
the MOCAs, and therefore I am not going to sit before you and
answer that we asked for the elimination of it.
Mr. Inslee. I am going to ask you one more time. Did you
not ask for option two that would require the elimination of
the MOCA concept, and that is the language of the memo? Did you
not do that?
Ms. Scarlett. We asked for an option that did not use the
MOCA concept.
Mr. Inslee. Thank you. We could have saved 20 minutes if
you had answered that question.
Ms. Scarlett. No, sir, if I may.
Mr. Inslee. Let me ask you one more question here. The
Endangered Species Act, I assume you believe it gives the
administration the authority to look at issues of habitat
destruction and how that habitat has been destroyed, including
cutting down old growth forests, is that correct?
Ms. Scarlett. Could you repeat that again?
Mr. Inslee. I am sorry. The Endangered Species Act gives
the authority to the agency to consider issues of habitat
destruction, including looking at reasons why habitat is being
destroyed and how the Federal government can consider their
preservation?
Ms. Scarlett. Absolutely the Act takes into account habitat
modification and its impacts on species.
Mr. Inslee. And including how that habitat is being
destroyed, correct? Like if you cut down the old growth, that
is a thing to be concerned about.
Ms. Scarlett. The Act includes consideration of any changes
in the habitat that might affect the species.
Mr. Inslee. OK. Then why is the agency taking such a short-
sighted approach on Polar Bears and global warming? I want to
read from a document dated December 27, 2006, for immediate
release. It says, ``Interior Secretary Kempthorne announces a
proposal to list Polar Bears as threatened under Endangered
Species Act,'' and it says on page two, ``While the proposal to
list the species is threatened cites the threat of receding sea
ice, it does not include a scientific analysis of the causes of
climate change. That analysis is beyond the scope of the
Endangered Species Act review process which focuses on
information about the Polar Bear and its habitat conditions,
including sea ice.''
Now, the fact of the matter is, is that global warming is
causing the melting of the Arctic ice. The Polar Bear survival
as a species is dependent upon the existence of that Arctic
ice. Your administration under your leadership refuses to
consider the human activities that are at least in part
responsible for melting of the habitat that keeps these bears
alive.
Now, you just got done telling me that it is part of your
job to look at habitat destruction and the reasons for that
habitat destruction, and your refusal to look at the reasons
why the Arctic ice is melting would be just as glaringly
incompetent as refusals to look at clear cutting the old growth
for Spotted Owls.
Now, the fact of the matter is your administration under
your leadership is refusing to consider the reason for the
habitat destruction that could lead to the extinction of Polar
Bears, isn't that correct?
Ms. Scarlett. No, that is certainly not correct, sir. Since
2001, President Bush has affirmed that climate change is
occurring, and that there are anthropogenic or human-caused
reasons for that.
I currently chair a climate change committee in the
Department of the Interior with some 60 plus participants,
including many U.S. Geological Survey scientists. We are
looking at its impacts across the lands and waters that we
manage.
In the instance that you cite with respect to the Polar
Bear, the entire focus of that proposed listing was indeed the
change in habitat, the sea ice melting. The reason for the
particular language that you cite there is that the Fish and
Wildlife Service comprises biologists. Therefore, their
scientific expertise is biology. They were able to import
information about sea ice and sea ice melting, but they did not
feel that they were competent to judge or write about the
causes of climate change. That we look to our U.S. Geological
Survey and many other bodies, the Intergovernmental Panel on
Climate Change----
Mr. Inslee. That is correct, and your approach is
magnificently short-sighted because you do have the authority
under this Act to have those other agencies of the government
look at the causes of climate change and the reasons why the
Arctic is melting, and you are sitting there telling me we
can't use taxpayer dollars to find out why the climate change
is occurring----
Ms. Scarlett. Sir, we are doing that.
Mr. Inslee.--under this--well, excuse me. Then I guess you
are----
Ms. Scarlett. We are absolutely doing that but in----
Mr. Inslee. You are telling me this document then that came
out of Secretary Kempthorne's office dated December 27, 2006,
is a bunch of hooey, is that what you are telling us?
Ms. Scarlett. No. What I am saying to you is that in the
context of the Endangered Species Act, the Act directs the Fish
and Wildlife Service to look at five factors that might affect
species, one of which is habitat.
So in the context of their proposed listing, they looked at
habitat and they did write up significant comments with respect
to sea ice, and the sea ice trends. But in the context of ESA,
that is the limitation of what their charge is.
Their charge is not in that document to turn around and re-
do the Intergovernmental Panel on Climate Change report, but
the administration and the Department are very actively engaged
in that. In fact, we have frequent presentations by our U.S.
Geological Survey people reporting on their science as it
relates to that issue.
Mr. Inslee. I will just ask one more crack at this and then
I will----
Mr. DeFazio. Excellent.
Mr. Inslee.--be finished. Thank you, Mr. Chair, for your
indulgence.
Do you agree or disagree with this document that came out
of the Secretary's office that said that a scientific analysis
of the causes of climate change is beyond the scope of the
Endangered Species Act? Do you agree or disagree with that
statement?
Ms. Scarlett. I agree that that is an accurate statement.
The focus of the ESA is on the habitat and the document clearly
cites the change in habitat, including sea ice melting. It is
not a forum for talking about larger climatology and
atmospheric chemistry. There are places for that, and we are
engaged in those efforts.
Mr. Inslee. I wish it was so, and thank you. You have given
me two answers to the same question. Thank you very much.
Mr. DeFazio. I thank the gentleman. If the gentleman can
stay for a few moments.
Mr. Inslee. Briefly.
Mr. DeFazio. Well, Mr. Rahall is supposed to be here too,
and I have 10 constituents waiting in my office. I am wondering
if you would take the Chair, but let me just do some quick
business.
I have a unanimous consent request for a statement from
Representative Saxton, a letter directed to Secretary
Kempthorne from Wayne Gilchrest and Mr. Saxton, a statement by
the Ranking Member Don Young, testimony by Robert Hallock,
former Fish and Wildlife employee, and a statement by the
Wildlife Society regarding the final TWS position statement on
the Endangered Species Act, and without objection we will enter
those into the record.
[The information follows:]
Statement of The Honorable Jim Saxton, a Representative in Congress
from the State of New Jersey
The Endangered Species Act is often called the ``crown jewel'' of
our nation's environmental laws because it is the only environmental
statute that aims to protect both threatened and endangered species and
the habitats on which they depend. The ESA has been a remarkably
successful statute. It has saved many species from extinction and
helped to restore such iconic wildlife as the gray wolf and bald eagle
across much of their historic range.
Congress remains committed to the goal of protecting endangered
species for future generations of Americans, and it is important that
the Administration and Congress work together to ensure that any
changes in the way the Act is implemented be accomplished in the open
and with full opportunity for public vetting. I have expressed my
concerns over reports that the Administration is considering
overhauling the Act through regulatory and policy changes. Congressman
Gilchrist and I sent a letter to Secretary Kempthorne on April 18,
2007, regarding some troubling administrative policy changes to the ESA
that were reported in the media, and I will submit that letter here for
the record as well.
I want to reiterate my opposition to any attempt to rewrite the ESA
administratively, especially if those changes might weaken in any way
the critical safety net that the ESA represents for species and
habitat. While I am, of course, open to suggestions to improve
implementation of the Act on the ground and strengthen its ability to
recover species, any broad changes to the ESA should have full
deliberation in Congress.
I look forward to this hearing and to future dialogues over how we
can best fulfill the promise of the ESA and protect America's wildlife
heritage.
______
[The letter to DOI Secretary Kempthorne submitted for the
record by Mr. Saxton follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[The statement submitted for the record by The
Honorable Don Young follows:]
Statement of The Honorable Don Young, Ranking Republican,
Committee on Natural Resources
Mr. Chairman, I want to compliment you for holding this hearing. I
am one of only nine members of the current House of Representatives who
voted for the Endangered Species Act in 1973.
I supported that Act because I felt then, as I do now, that we have
a responsibility to help conserve and restore wildlife species. It is
for this reason why I have sponsored, co-sponsored and voted for
efforts to protect a diverse group of species including elephants,
rhinoceros, tigers, Great Apes, neotropical migratory birds and marine
turtles.
Having said that, I can assure everyone within the sound of my
voice that no one who voted for this legislation ever envisioned that
this Act would be used to smash the dreams of millions of Americans.
Our forefathers who sacrificed everything for our freedom would be
shocked to learn that Americans are unable to fully utilize their
property because of a blind salamander, fairy shrimp, fountain daters,
ground beetles and kangaroo rats.
In fact, there are 2,489 domestic and foreign species listed under
the Endangered Species Act. The Fish and Wildlife Service has designed
critical habitat for 487 species. Yet, despite spending billions of
dollars, designating millions of acres of critical habitat and
disturbing the lives of millions of property owners who must, in some
cases, pay extortion fees to develop their land, only 8 domestic
species have ever been ``recovered'' in more than 30 years.
There is no question that politics and not the Department of the
Interior are running the Endangered Species Act. It has been hijacked
by misguided federal judges and radical environmental organizations
whose sole interest is not to recover species but to gouge themselves
on taxpayer money. The Fish and Wildlife Service has not initiated a
listing decision on its own since 1995. Instead of recovering species,
the Service must spend its merger dollars preparing and defending
themselves against an endless barrage of lawsuits. It has gotten so bad
that the Service has now hired a full-time attorney that does nothing
except monitor the legal filings against the agency.
This is not a new problem. It started in the Clinton Administration
and has continued unabated in the Bush Administration. Organizations,
like the Center for Biological Diversity, know they can go to federal
court and sue the agency over a listing or critical habitat
designation. They know they will win, they will be handsomely
compensated for suing and they can then hire more lawyers to file or
threaten to file more lawsuits. Meanwhile, species continue to languish
on the Endangered Species Act with little, if any, hope of ever
recovering.
In my own State, the National Marine Fisheries Service is
investigating whether beluga whales in the Cook Inlet should be listed
on the Endangered Species Act. The agency is responding to a petition
filed by an organization that has a political agenda of driving a stake
in the heart of economic development in Alaska. This Act has become a
powerful weapon to stop or limit development in this country.
Mr. Chairman, instead of criticizing political appointees within
the Department of the Interior for doing their job, this institution
would be better served by asking how we can improve the Endangered
Species Act. There is no one who can objectively say that this program
is working effectively with a less than 1 percent recovery rate because
the only entity that is profiting from the Act are those groups who
endlessly sue the Fish and Wildlife Service and the National Oceanic
and Atmospheric Administration.
In the past four years, millions of dollars has been paid to
litigants in hundreds of court cases. Just imagine, if these funds had
been used for the original purpose of the Act which was to recover and
then remove species from the list.
It is time to stop this madness. Federal policy makers have a right
to question the conclusions of career biologists. These employees are
hardworking dedicated public servants but they are not infallible. I
look forward to hearing from our witnesses and want to hear their
perspectives on how we can restore the Endangered Species Act to its
original intent.
______
[The testimony submitted for the record by Robert Hallock
follows:]
Statement submitted for the record by Robert J. Hallock
Subjects
Department of the Interior staff makes changes to Fish and Wildlife
Service February 8, 2006 redesignation of Critical Habitat for the
endangered Kootenai River white sturgeon that prevent its recovery.
This is a documented case history of misuse of the best available
scientific information during rule making, and subsequent obstruction
of regulatory processes under the Endangered Species Act (ESA) by the
Bush Administration appointees within the Department of the Interior
and the Army Corps of Engineers for political purposes. Several
remedies widely applicable to the ESA are offered below.
Qualifications
By Robert J. Hallock, PhD., 33 years with Fish and Wildlife Service
(Service), Division of Ecological Services, responsible for
administration of the ESA. I was the Fish and Wildlife Service's
Kootenai River white sturgeon (Kootenai sturgeon) Recovery Team Leader.
I am the primary author of the Fish and Wildlife Service's Interim Rule
published in the Federal Register on February 8, 2006, expanding
designation of critical habitat for the sturgeon in the Kootenai River
within northern Idaho. I was the Fish and Wildlife Service consultation
biologist directly involved with Corps of Engineers' operations of
Libby Dam, on the Kootenai River in Montana.
Background, Status of the Surgeon, and Urgency to Conserve
The Endangered Species Act was passed by Congress to insure that
the species diversity of the United States was not threatened by
untempered economic growth and development. As implemented it is a
balance between development and the goals of the ESA. The Act primarily
accomplishes Congress' goals through listing and recovery of species at
risk of becoming extinct. Key to protection and recovery of a species
is the development of the biological opinions on Federal activities
including the proper use of essential primary constituent elements of
designated critical habitat
Designation of Critical Habitat falls under section 4 of the Act.
Such determinations are supposed to be made ``on the basis of the best
scientific data available.'' By definition, critical habitat ``means
(i) the specific areas within the geographical area occupied by the
species at the time it is listed in accordance with provisions of
section 4 of this Act, on which are found those physical or biological
features (I) essential to the conservation of the species and (II)
which may require special management considerations and protection.''
Recovery of the Kootenai sturgeon is dependent upon restoring
sufficient water depth to allow migration into otherwise suitable
designated Critical Habitat to spawn, and incubate embryos.
Background and urgency for listing and development of critical
habitat: The Kootenai sturgeon numbered about 7,000 in 1980, but only
about 1,400 when listed in 1994, and fewer than 500 of these fish
remain today. They have not successfully reproduced since 1974,
coincident with the operations of Libby Dam, Montana. As a result of
operating the Kootenai River for hydroelectric power generation and
flood control, this dam has significantly altered spawning season
flows, depths, and water temperatures of the river. Since Libby Dam,
annual average maximum water depth within designated critical habitat
has been reduced by about 12 feet. This loss in depth has precluded
known use of this critical habitat for 15 out of the last 16 years that
intensive monitoring has taken place. The exception being 2006, when
the Corps failed to follow its established, previously consulted upon,
flood control procedures, and caused a high water event only 3 feet
shallower than the unregulated annual average annual peak flow event
within this newly designated critical habitat. Under these conditions
in 2006 about one third of radio tagged females in spawning condition
did migrate into this critical habitat.
Intervention
A senior Department of the Interior official forced the Service to
change the essential primary constituent element for water depth to a
level not recommended by the Service, not supported by the available
scientific data and information, and not leading to survival or
recovery.
For 12 years the Army Corps of Engineers has ignored the Reasonable
and Prudent Alternative measures to provide greater flows of three
biological opinions (1995, 2000, and 2006) that found jeopardy to the
continued existence of the species based upon their proposed actions.
The biological recommendations addressed the critical need to restore
spawning habitat by enhancement of powerhouse releases through either
use of the spillways or installation of the additional existing
generators, turbines, and related facilities now stored within the
powerhouse at Libby Dam. Biologists of the Idaho Department of Fish and
Game have documented population declines, and they have estimated that
the remaining adult sturgeon die at 9% per year. Because the reduced
water depth, most sturgeon continued to spawn over unsuitable sandy
substrate downstream of the newly designated critical habitat. Because
of these unsuitable conditions, millions of eggs and embryos perish
annually.
Besides Army Corps of Engineers' years of failures to follow
earlier and existing biological opinions, the Corps' staff has begun
insinuating pending ``stock limitation''. Stock limitation would be
used as an excuse to evade responsibility to use their authorities to
recover the Kootenai sturgeon because an argument could be made that
there would not be enough spawning sturgeon remaining to demonstrate a
reproductive response, no matter what form of habitat restoration
occurs. The Service and the Recovery Team, including State, Tribal, and
Canadian entities, believe recovery is achievable.
Specific Points of Intervention
The following is a list of extraordinary efforts by the staff of
the Secretary of the Interior to intervene, to delay, and to nullify
the regulatory process of designation of critical habitat, leading to
obstruction of subsequent consultation under section 7, and how and why
this is occurring:
Abuse of the ``Data Quality Act'' which is supposed to
assure quality, objectivity, and integrity of Federal government
information. In practice, the Secretary's staff inserted inappropriate
information to minimize accountability of the regulated agencies in
advance of critical habitat designation (rule). Initially they
attempted to eliminate a measurable depth criterion of at least 7
meters altogether. Then they required the Service to arbitrarily reduce
recommended minimum water depth to at least 5 meters.
No sturgeon spawning migration or successful recruitment has
been documented in the designated critical habitat with minimal flows
resulting in water depths of only 5 meters. This critical habitat rule
facilitates legal challenges from affected third parties such as
Anheuser-Busch (hop farms), downstream Canadian hydroelectric
operators, or conservation groups. Any litigation delays effective
recovery actions. In addition, insertion of the Secretary's staff's
arbitrary 5 meter depth criterion made my critical habitat rule useless
during the subsequent ESA section 7 consultation for Libby Dam that was
signed 10 days later (February 18, 2006). This consultation addressed
the most significant of the essential critical habitat features:
minimum water depth suitable for normal spawning migration behavior,
survival, and recovery. Had the original draft critical habitat
recommendation, greater than 7 meters, stood, the February 18, 2006
biological opinion would have had the same clear minimum water depth
standard, and it would have led to recovery.
Anti-ESA/regulatory language. The Secretary's Office
required the insertion of boiler plate propaganda falsely claiming that
the designation of critical habitat is of little value for conservation
of listed species, and that litigation resulting from these tardy or
faulty rules wastes agency resources. Because of the Interior staff's
arbitrary reduction in critical habitat need for depth discussed in the
bulleted item above, the Secretary's required inserted language becomes
a self-fulfilling prophesy. This Interim ``final'' Rule is flawed, and
it does not provide for either survival or recovery of the Kootenai
sturgeon.
In an overt attempt to obstruct future section 7
consultation, Julie McDonald forced the Fish and Wildlife Service to
insert faulty consultation baseline language into the February 8, 2006
Interim Rule designating critical habitat for Kootenai sturgeon,
Federal Register, Vol. 71, No. 26, Feb. 8, page 6389. MacDonald
inserts: ``In some cases, the PCEs may exist as a result of ongoing
Federal actions. However, the Service does not foresee that continued
operations of Libby Dam in a manner consistent with past operations
would result in adverse modification of critical habitat. These
conditions are part of the current baseline conditions.'' As our
Interior Solicitor has pointed out, if this were true there would be no
need for the Corps to have consulted on the operations of Libby Dam
three times each with the Fish and Wildlife Service and National Marine
Fisheries Service. Also, no special management could subsequently be
recommended to the Corps by the Service to address the ongoing adverse
modification of critical habitat.
On a conference call with me, Susan Martin and others of the
Service's Spokane Field Office, Dale Hall, Director of the Fish and
Wildlife Service, was adamant that this baseline insertion in the
Kootenai sturgeon Interim Rule was out of line. He vowed that he would
deal directly with Julie MacDonald, and to have this passage removed.
Unfortunately, he failed. As cited above this language remains in the
published Kootenai sturgeon critical habitat Interim Rule.
The Secretary's Office's recent creation of required
special internal procedures, ``concept papers,'' to provide themselves
and their preferred special interests an advanced, closed-door,
opportunity to intervene in the process prior to the publication of
even Proposed Rules. Rules are supposed to be based solely on best
available scientific information. This unnecessary and inappropriate
procedure serves only political ends while attempting to shield key
portions of the Administration's deliberative process from public
review.
Direct alteration of the quality of scientific
information relied upon. Direction to misclassify four peer reviewed
research papers by the U.S. Geological Survey as ``gray literature''.
This weakens the information on altered physical parameters leading to
the primary constituent element, the minimum 7 meter depth criterion,
and invites Data Quality Act challenge by affected third parties. It is
widely understood that USGS peer review process and research quality is
second to none.
Also in the concept paper phase, the Secretary's staff
arbitrarily eliminated all quantification of essential physical-habitat
features, the Primary Constituent Elements including the essential
minimum 7 meter water depth.
When the Service resisted, the Secretary's staff ``cherry
picked'' an outlier data point (5 meters) from the best available
scientific data to misrepresent as the essential physical habitat
feature for water depth. This alone rendered this published Interim
``final'' Rule useless for the conservation of the Kootenai sturgeon.
The arbitrary 5 meter water depth criterion inserted
personally (as documented in ``track changes'') by Julie MacDonald of
the Secretary's staff essentially nullified the section 7 consultation
regulatory requirement upon the Army Corps of Engineers to provide
greater flows and essential water depths. The Corps was no longer
obligated to provide flows within the newly designated critical habitat
sufficient to meet even a minimal water depth for proper spawning
migration behavior. That February 18, 2006 section 7 consultation which
relied in part upon my interim critical habitat rule is now in Court.
Thus, the Secretary's required boiler plate claiming that critical
habitat is resulting in unwarranted litigation has already become a
self-fulfilling prophesy assured by the behavior of the Secretary's own
staff.
Deputy Assistant Secretary Julie MacDonald arbitrarily
inserted unreferenced materials in my Federal Register notice of
February 8, 2006, misrepresenting the Army Corps of Engineers'
performance in providing sufficient flows during the previous 12 years.
The insertion was to the effect that the Corps had been in compliance
with prior jeopardy biological opinions on the operations of Libby Dam.
The fact is that they have repeatedly failed to implement the flow
enhancement measures specified in 1995 and 2000 jeopardy biological
opinions. The unacknowledged fact is that the Corps has been sued and
lost in District Court for noncompliance with the biological opinions.
It is also significant that MacDonald (or possibly the Corps as ghost
writers for MacDonald) failed to reference the litigation history of
noncompliance to be consistent with the Data Quality Act. Julie
MacDonald's insertions also contain a favorite misrepresentation by
some Corps' Northwestern Division staff that the ``(t)he declines [of
Kootenai sturgeon] are believed to be due to recruitment failure
largely related to lack of appropriate spawning and rearing habitat''.
The Corps (through MacDonald) is trying to make the impression that
appropriate spawning and rearing habitat is naturally lacking. The
truth is that the critical spawning/ incubation habitat still exists
but requires adequate flows and water depth to make it accessible.
Presence of suitable habitat and the ability of sturgeon to reach and
use it was documented as an unintended consequence of the Corps'
deliberate disregard of their own flood control procedures in spring of
2006.* The Corps' action resulted in high flows and water depths, and
in response a third of the radio tagged females in spawning condition
did occupy and use this critical habitat. This proved that the suitable
spawning/incubation habitat existed, and that it is the Corps'
operations of Libby Dam that are precluding normal migration and
utilization by spawning and incubating sturgeon.
Delays forced upon the Fish and Wildlife Service. The
chronic intervention by the Secretary's staff in late 2005, including
their newly required ``concept paper'' phase delayed the process to the
extent that procedural deadlines set by the Court could no longer be
met even with a 60 day extension to February 1, 2006, granted by the
Court. Thus, the current critical habitat rule is uniquely labeled
``Interim Rule'', with internal language stating that it ``does
constitute a final rule''. Yet this rule calls for public comment, a
unique label and rule.
During the fall of 2005, it appeared that Julie MacDonald
and her assistant Randal Bowman were intending to set up this Interim
Rule for failure through a third party challenge under the Data Quality
Act. However, during January 2006 their strategy changed to one of
direct obstruction through arbitrary insertion of erroneous primary
constituent elements and unreferenced information that would not
support either survival or recovery of the Kootenai sturgeon. From that
time it appeared impossible to overcome this politically motivated
obstruction from the Department of the Interior.
Intimidation of powerless Fish and Wildlife Service staff
by political appointees through the Senior Executive Service (SES)
personnel in management positions. Throughout the attached
documentation it is evident that numerous Fish and Wildlife Service
biologists at field, regional, and central office staff levels
attempted to adhere to the best available scientific information during
the formulation of this Kootenai sturgeon Interim Rule. However, the
Fish and Wildlife Service staff was ultimately unable to resist
political intervention and total disregard of the Data Quality Act by
Julie MacDonald and her assistant, Randal Bowman, seeking early
political intervention on behalf of economic special interests. The
Endangered Species Act regulatory processes were deliberately subverted
by the Bush Administration appointees acting through compliant Civil
Service managers and Senior Executive Service personnel.
Remedies
If you truly want the regulatory agencies to conduct business as
Congress has prescribed in the laws, than you need to replace all SES
positions in the regulatory agencies with regular Civil Service
positions. In this way agencies may again have stable public servants
as leaders and their staffs will have sufficient autonomy to do their
jobs without fear of retaliation.
Senior Executive Service has created a systemic cancer within the
regulatory agencies, where the smallest of decisions are subjected to
political review and the best available scientific information becomes
negotiable. SES was created by the Civil Service Reform Act of 1978,
and now most of the top positions in the Fish and Wildlife Service,
Regional Director up, are SES. It is about money in exchange for
political control. SES employees have higher pay scales and compete for
bonuses from a dedicated bonus source in exchange for loyal political
obedience. These SESers have hire and fire authority over regular civil
servants, yet like their appointed political masters in the
Departments, few have been held accountable for adverse personnel
actions or poor resource decisions, including those involving the ESA.
They have for decades systematically selected and promoted regular
Civil Service line officers for similar levels of obedience even when
that obedience means that laws could be violated. With such a top down
structure well established it should be no surprise that the purposes
of the ESA are not reliably fulfilled in response to shifting political
priorities in the Executive Branch.
Accountability for Federal employees for disregard of
requirements of the Endangered Species act is almost unheard of. While
adequate provisions exist within the Act, for political reasons they
rarely enforced. In some instances where politics has been given
priority over best available science, known threats to currently listed
species have been perpetuated. Some of these treats may be closely
linked to take, a prohibited action under section 9. Where it can be
demonstrated that such actions were outside the scope of the Endangered
Species Act or established consulted upon agency procedures, the
potential of criminal liability exists. Accountability has also been
lacking when politics has trumped best available scientific information
in a high proportion of recent listing decisions. Some of these poor
decisions have been reversed by the courts. However, this may take
years. In the interim threats commonly remain unaddressed, as species
continue to decline.
The problem here is that investigations involving Endangered
Species Act are initiated within the Service's Division of Law
Enforcement, (a subdivision of the Department of the Interior) prior to
referral to the Department of Justice. Since frequently Interior
officials are involved directly or in some way complicit, these
investigations do not occur or they do not reach the Department of
Justice for prosecution. This has become a classic case of the fox
guarding the hen house.
As a remedy, Congress could redirect that all potential instances
of wrongdoing under the Endangered Species Act now be referred directly
to the Department of Justice for investigation and prosecution if
warranted. Further, a tracking system is suggested to allow Congress to
assess performance by the Department of Justice.
Abolish the so-called Data Quality Act and anything else
that comes up administratively to carry out the same objectives. This
is nothing more than a poorly disguised tool to aid special economic
interests and the Federal action agencies serving these special
interests evade Federal laws and regulations, including the ESA under
the veil of ``sound science''.
* The Army Corps of Engineers has been forced to publicly admit
that their 2006 spill at Libby Dam of up to 31,000 cfs was a result of
deliberate repeated failure to follow their own flood control
procedures. The Corps has yet to admit to why they deliberately
disregarded their primary mission and authorities three times in 2006
alone. Nor have they taken disciplinary actions against those
responsible for the adverse effects. Effects of this spill included: 1)
Unreported lost hydroelectric revenue of approximately $20 million that
will never be included in the annual Treasury payments by Bonneville
Power Administration. Unreported agricultural losses were also in the $
millions. 2) Due to extended periods of elevated dissolved gas in the
water during this forced spill, there was unauthorized injury of
threatened bull trout in the Kootenai River below Libby Dam documented
by Montana Department of Fish Wildlife and Parks, 3) The Corps was
responsible for generating unwarranted fear of flooding in the local
communities, and 4) The Corps has lost credibility as an agency charged
with assuring public health and safety. The Corps' After Action Report
of this spill event omitted disclosure of the extensive economic
losses, omitted any credible explanation of why they disregarded their
own established procedures on three occasions in 2006 alone, and
arbitrary omission an external peer review on their After Action Report
consistent with the Data Quality Act.
Calls for a Department of Defense Inspector General whistleblower
investigation, FBI investigation, and Service's Division of Law
Enforcement investigation have all been ignored. No one has been yet
been held accountable within the Corps, suggesting that they were
working under orders from high in the Administration. I can offer only
two explanations for this Corps operational failure 1) it was an
arrogant and irresponsible attempt to resist regulatory recommendations
under the ESA from both the Service and National Marine Fisheries
Service to adopt a more fish friendly flood control procedure, and 2)
it would serve to maintain the status quo and the optimization of
hydroelectric operations in the U.S. and Canada, and agricultural
operations in Idaho, especially 50 acres of hops owned by Anheuser-Bush
Inc. that are planted within the levees along the Kootenai River.
______
Supporting information for testimony of Robert J. Hallock at House
Committee on Natural Resources, Full Committee Oversight Hearing
Subject: Chronology of Julie MacDonald's intervention into Kootenai
sturgeon Critical Habitat Interim Rule (FR Vol. 71, No. 26 Wed. Feb. 8,
2006, Pages 6383-6396)
Julie MacDonald, Deputy Assistant Secretary of the Interior, was
directly involved in the technical details during Fish and Wildlife
Service's development of the Interim Rule expanding the designation of
critical habitat for the Kootenai sturgeon, published in the Federal
Register on February 8, 2006, under a Court order.
This discussion involves a listing decision under section 4 of the
Endangered Species Act and by definition it is supposed to be developed
``solely on the basis of the best scientific and commercial data
available''. However, the communications identified below document how
Ms. MacDonald regularly inserted the administration's policy and
distorted the scientific information during development of this Interim
Rule redesignating critical habitat for the Kootenai sturgeon.
The following annotated chronology tracks the development of two of
the significant flaws which Ms. MacDonald forcibly inserted into this
Interim Rule:
1) One flaw involves a policy matter that inappropriately
establishes a baseline condition of the existing Federal agency
operations of Libby Dam for subsequent consultations. These ongoing
operations of Libby Dam known are known to have been causing
recruitment failure among Kootenai sturgeon for 30 consecutive years.
This flawed baseline condition, established in this critical habitat
rule by Julie MacDonald, constrained the Fish and Wildlife Service
during section 7 consultation and allowed the Federal actions agencies
to avoid full utilization of their authorities to conserve the Kootenai
sturgeon. This is precisely what occurred in a biological opinion on
Libby Dam operations issued on February 18, 2006 just 10 days after
this Interim Rule.
2) The other flaw involves arbitrarily (``cherry picking the
data'') to minimize the depth metric in the Primary Constituent
Elements (PCE). This was also intended to minimize the regulatory
burden, and it resulted in a management threshold metric not likely to
support or conserve the endangered Kootenai sturgeon. Thus subverted
politically, this critical habitat Interim Rule becomes ineffective,
and the DOI required boiler plate additions to the critical habitat
rules condemning the process become a self-fulfilling prophecy.
Throughout this process you will see attempts (ultimately
unsuccessful) by various staff of the Fish and Wildlife Service to
resist Ms. MacDonald in order to develop a functional and defensible
critical habitat consistent with the Endangered Species Act.
The dates below are arranged by the date upon the most recent e-
mail in a communication string. Some of these e-mail communication
strings include relevant attachments with Julie MacDonald's input in
track changes.
09-23-05: Guidance is sought on how to address this baseline issue
initiated by the Corps of Engineers involving Kootenai sturgeon.
Reference is made to inappropriate use of baseline in the ongoing
resignation of critical habitat for bull trout and the possible poor
precedent for the ongoing redesignation of critical habitat for
Kootenai sturgeon.
11-29-05: e-mail message from Jesse DELia
Julie MacDonald becomes directly involved in the drafting of the
sturgeon critical habitat rule. The attachment: Kootenai comments(11-
18-05) includes her comments in track changes. Within this iteration of
the draft rule the faulty baseline language has already been inserted
in both the Primary Constituent Elements discussion and in the Section
7 Consultation discussion, page 33 and 39 respectively:
``Each of the areas designated in this rule have been determined to
contain sufficient PCEs to provide for one or more of the life history
functions of the Kootenai sturgeon. In some cases, the PCEs exist as a
result of ongoing Federal actions. As a result, ongoing Federal actions
at the time of designation will be included in the baseline in any
consultation conducted subsequent to this designation.''
My primary constituent elements section with specific metrics,
including at least 23 feet (7 meters) of river depth have been removed
entirely. In their place is inserted on page 33 ``We have not changed
the existing PCEs in this rulemaking.'' This is not based on the best
scientific information available in 2005.
01-19-06: Draft rule returned from Fish Wildlife and Parks (DOI,
MacDonald). This iteration includes my suggested insertion within the
flawed baseline paragraph now moved into the Special Management
Considerations and Protections section: ``However, the current ongoing
operations of Libby Dam do not provide for sufficient flows and depths
of the Kootenai River that are features essential to the conservation
of the sturgeon.'' In addition two narrative PCEs are reinserted,
neither has specific measurable metrics. DOI required ``boiler plate'
subsections discrediting the critical habitat process is still present
within the Supplementary Information section.
01-25-06, 12:16 PM: Includes terse, accusatory comments and
directions from Julie MacDonald to Ren Lohoefener, e-mail of 01-21-06.
Note MacDonald's reference to her data, underlined for emphasis.
Includes another iteration with more of Julie MacDonald's ``rewrite''
of 01-20-06, and her comments shown in track changes.
My sentence inserted in the flawed baseline discussion remains on
page 26.
In the background information section page 6 Julie MacDonald has
misrepresented the data and ``cherry picked' and the lowest end of the
range depth where any sturgeon egg has been recovered by one researcher
working only in the Kootenai River, 16.5 feet (5 meters). She then
relied upon that to replace my 23 feet (7 meters) management criterion
in the PCEs. In her 01-20-06 draft rule on page 6 Ms. MacDonald now
states ``The data indicates that Kootenai Sturgeon actually spawn at
depths roughly greater than 16.5 ft(5 m)...''. Then on page 24
MacDonald changes the PCE metric to read'' A flow regime ``to produce
depths of at least 16.5 ft(5 m)...''. Julie MacDonald, said to be an
engineer by training, is here functioning as a biologist.
The required DOI political boiler plate discrediting the critical
habitat process has been removed from this document.
MacDonald inserts an almost entirely new background section. Of
particular interest is the first full paragraph found on page 6
involving the role of the Army Corps of Engineers. There are numerous
implications:
1) First, is obvious that no one in the Fish and Wildlife Service
wrote this new background section. It came from MacDonald to the
Service. I certainly did not write this although I am identified as
principal author at the end of this Interim Rule.
2) There are no citations for the information in this paragraph. A
different standard is used to measure the veracity of materials
inserted by Julie MacDonald in to the rule. There is a double standard
on information quality involved here. I have no entries to identify the
source of this misrepresented information in the administrative record
for this Interim Rule. Data Quality Act disregarded by MacDonald
3) Because the several misrepresentation(s) in this paragraph
mirror those perpetuated by the Army Corps of Engineers staff over the
past 11 years (involving noncompliance with the Reasonable and Prudent
Alternatives of 3 Jeopardy Biological Opinions) it is apparent that
staff from the Army Corps either directly wrote this paragraph for
MacDonald or otherwise communicated it to her.
4) First sentence attributes the declining population of sturgeon
as ``due to recruitment failures largely related to lack of appropriate
spawning and rearing habitat.'' We have heard Dave Ponganis of the
Corps make this same misleading claim for years. To the contrary
spawning and rearing habitat has been always been there in the braided
reach. However, the Corps operations of Libby Dam have reduced water
depth, and this has in most years been altering normal behavior of
sturgeon during their spawning migration and causing them to spawn
unsuccessfully elsewhere over unsuitable sandy substrate.
5) The third sentence is a half truth at best. The Corps has
disregarded the RPAs of our 3 jeopardy biological opinions over an 11
year period. The RPAs I am referring to are Service recommendations to
use the spillways at Libby Dam specifically to augment flows, in excess
powerhouse capacity, to allow the sturgeon to migrate and reproduce
normally. By refusing to perform the most obvious recommended
experiment involving flows the Corps has suppressed a logical adaptive
approach to conservation. If you do not do the experiment you don't
have to evade the results if they are inconvenient.
01-25-06, 3:04 PM: Series of e-mail messages in a mode of
``triage'' in response after the fact to MacDonald's manipulation of
the data involving depth needs for migration of Kootenai sturgeon
spawners. The direct conference call mentioned was supposed to include
Julie MacDonald and me. If MacDonald was on the call she was not
announced. During that call I explained how inappropriate this 5 meter
depth criterion was, and how it was not supported by the citation
relied upon by MacDonald in her inserted background section on page 6
or on page 24, her inserted PCEs. The Service staff really had no
alternatives, but to include MacDonald's edits. At this point MacDonald
had essentially assumed my role as primary author of this Interim Rule.
(A total of 5 e-mail strings, including attachments with
MacDonald's input in track changes sent in separate e-mails)
[NOTE: Additional information submitted for the record has been
retained in the Committee's official files.]
______
]The Final TWS Position Statement on the ESA prepared by
The Wildlife Society follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. DeFazio. Just to clarify Mr. Sali's point as best
as we can on the commercial factors, I mean, this quotation a
little longer, it says, ``Solely on the basis of the best
available scientific and commercial information regarding a
specie's status without reference to possible economic or other
impacts of such determination.''
But there does not seem to be an otherwise, according to
staff, definition of commercial data, so we will have to
continue to plumb the depths of that, but my understanding is
economic considerations come in at the top of designation of
critical habitat and/or the ``God Squad'' being convened to
determine the fate of a species. Commercial data, at least in
consideration of salmon generally, and that is, as was stated
by one of the witnesses, which is, we catch fish, we have to
document the fish we catch, and that can be submitted a part of
an argument about the viability of the species.
Finally, just one last thing to Secretary Scarlett, and
hopefully this time we will agree. We have an interagency
problem here which you could resolve satisfactorily. Chairman
Rahall has a large number of petitions regarding the record of
decision on the de-listing of the, or listing, is it a de-
listing? De-listing of the Northern Flying Squirrel, and I
won't read the formal name, and these were postmarked on the
date that comments closed, but the Postal Service delivered
them after that date, and apparently, according to Chairman
Rahall, thus far the position of the Department has been that
they can't accept them even though, for instance, the IRS says,
gee, if you mailed your check by midnight, it is OK.
What do you think? Can we help these people out?
Ms. Scarlett. I would prefer to turn to my expert Dale Hall
on this.
Mr. DeFazio. OK.
Ms. Scarlett. He is the one that would know the procedures
and rules with respect to the timing.
Mr. DeFazio. Is the gentleman----
Ms. Scarlett. He says we will----
Mr. Hall. Yes, I wasn't aware that they were late comments,
so we will take them.
Ms. Scarlett. He said we will take them.
Mr. DeFazio. OK, great. Excellent. We end on a positive
note. The Chairman will be happy if he ever comes back. I will
be happy if he comes back, too, because I have to go meet my
constituents but I appreciate Mr. Inslee taking over.
I thank the panel for sitting for such a long time, the
interruption, your patience, and your answers, and look at
that, perfect timing, we solved your flying squirrel problem.
So the next panel.
The Chairman. The next panel is composed of Mr. Dominick A.
DellaSala, Chief Scientist and Executive Director, National
Center for Conservation Science & Policy; Ms. Judith Schoyer
Rodd, Director, Friends of Blackwater; Mr. John Young [Retired]
Biologist, U.S. Fish and Wildlife Service; and Mr. William P.
Horn, Attorney at Birch, Horton, Bittner & Cherot.
Lady and gentlemen, we welcome you to the Committee. We do
have your prepared testimony and it will be made a part of the
record as if actually read, and you are encouraged to keep your
oral testimony within the five-minute limit.
Dr. DellaSala, do you want to proceed?
STATEMENT OF MR. DOMINICK A. DELLASALA, CHIEF SCIENTIST AND
EXECUTIVE DIRECTOR, NATIONAL CENTER FOR CONSERVATION SCIENCE &
POLICY
Mr. DellaSala. Thank you, Mr. Chairman, Distinguished
Committee Members.
My name is Dominick DellaSala. I am Executive Director and
Chief Scientist for the National Center for Conservation
Science & Policy, which is a conservation science policy think
tank in Ashland, Oregon. I, for the past year, have served on
the Fish and Wildlife Service recovery team.
By now the Committee has heard several allegations related
to my testimony, and I submitted it for the record, but I am
going to summarize here. I would like to set the record
straight on the recovery process that I witnessed as a recovery
team member.
To begin with, the recovery team did not include any of the
well-recognized published, established, independent owl
scientists. This was unusual in the terms of recovery team
makeup.
The second point I would like to make is that the team came
up with a draft in September, in part that was based on mapped
reserves of old growth forests. That draft was sent back to
Washington, D.C. on September 29. It came back to us with
direction from the Washington Oversight Committee. We were told
first that the Washington Oversight Committee ``rejected the
draft,'' and instead sent us instructions to develop two
independent options based on this new direction.
I have extensive documentation of that provided as e-mails
from different recovery team members that I could submit in
addition to my testimony. Some of those are summaries from
discussions that were had with recovery team members and Lynn
Scarlett.
During this process, we were told to do the following: Use
``new science''; second, increase emphasis on the Bard Owl;
third, de-emphasize old growth habitat protections; fourth, de-
link the recovery plan from the Northwest Forest plan
protections.
I want to point out the so-called ``new science'' that is
based on just two studies, both options one and two
significantly reduce the amount of old growth forest habitat
based on interpreting those two studies, and it has already
been read by Congressman DeFazio the specific caution noted by
the researchers not to apply their studies in management
recommendations at this time.
In addition to that, we had conference calls with those
researchers that warned us against doing this. We had other
input from those researchers to the recovery team that said
don't use our results to develop habitat provisions. That
advice was ignored. The habitat provisions made it into the
draft in both options one and two. It is not based on the best
available science at this time.
Now, despite the authors' warnings, now we have a document
that would reduce old growth habitat under both options, and
contrary to earlier statements on the September draft
submission, it did include provisions about the Bard Owl. That
is not true that we did not have provisions in the plan about
the Bard Owl. The recovery team acknowledged this as a threat,
had specific actions in there.
I will point out that when a species like the Spotted Owl
is faced with multiple threats, including the Bard Owl and
habitat loss, you protect more habitat, not less. There is a
very strong body of conservation science that supports that
statement.
Now, what we got were two options. Option one has the
mapped owl conservation areas, or MOCAs, but significantly
reduces by 27 percent the amount of habitat capable for Spotted
Owls compared to the Northwest Forest plan. Option two does not
have any mapped reserves. It is difficult as a scientist for me
to evaluate an option that does not have maps, but based on an
exercise we did as recovery team members it appears that that
option would result in about 823,000 acres of old growth forest
being left out of the reserve network.
We have an owl that is declining. We have the prevailing
science that says it needs habitat protected in fixed reserves.
There is only 7 million acres of the 24.4 million acres of
Federal old growth left. Every acre is precious.
So what is motivating this? First of all, in my testimony I
have documented the timber settlement agreement that was
reached between the industry and this administration in 2001.
That was led by the American Forest Resources Council. It was
designed to triple the amount of old growth logging in the
Pacific Northwest.
The administration settled and delivered on those processes
through a five-point plan that was designed to weaken the
habitat protections for listed species, including the owl and
fish throughout the Northwest. That is what is playing out here
in this recovery process.
The recovery process throughout was inappropriately
interfered politically. It is not based on the best available
science. The authors themselves of the studies that were cited
warned against using it in this manner. Yet it still appears in
the recovery plan.
I think what we have now is a product that is not based on
the principles of the Endangered Species Act with respect to
the best available science being used to develop objective
measurable criteria. Instead, we have a recovery plan that was
politically motivated and is most likely to reduce habitat at a
time when we are witnessing an accelerated decline for the
threatened Northern Spotted Owl.
Thank you.
[The prepared statement of Mr. DellaSala follows:]
Statement of Dominick A. DellaSala, Ph.D., Chief Scientist and
Executive Director, National Center for Conservation Science & Policy
Chairman Rahall and committee members, thank you for this
opportunity to testify on scientific integrity and the Endangered
Species Act. My name is Dominick DellaSala. I am Executive Director of
the National Center for Conservation Science & Policy, a science-based
conservation organization in Ashland, OR. Since last June, I have
served as a member of the U.S. Fish & Wildlife Service (USFWS)
appointed recovery team for the threatened Northern Spotted Owl.
There are three key points I will make today in my response to the
draft recovery plan for the Northern Spotted Owl published in the
Federal Register on April 26, 2007:
1. what was supposed to be a science-based plan was derailed by a
pattern of political interference (see Exhibit A);
2. the recovery plan includes habitat provisions recommended for
the owl that are considerably less than currently afforded the owl
under the NWFP; and
3. while oversight of agency documents by department officials in
itself is not unusual, in this case political interference clearly
allowed the Forest Service and Bureau of Land Management (BLM) to have
an inappropriate amount of influence that resulted in a recovery plan
that is not based on the best available science.
Throughout my testimony I will be referring to options 1 and 2 of
the draft plan. For simplicity, Option 1 is based, in part, on the
fixed network of mapped habitat reserves--called Late-Successional
Reserves or LSRs--initially established under the NWFP. Option 2 does
not rely on fixed reserves but rather lets the Forest Service and BLM
decide where blocks of habitat will be located according to a ``rule
set'' detailed in the recovery plan (see Appendix B of the plan). Both
options are inadequate to recover the owl.
(1) Spotted owl recovery plan and process was derailed by political
interference
Distinguished Members, in 1991 one of the Northwest's most famous
judges, The Honorable William Dwyer said that the debate over the
Northern Spotted Owl is about more than this one species. As he
recognized, under the law, the owl was the indicator species of the
remaining old-growth forest; all but a small fraction of which is now
gone (Seattle Audubon v. Evans, 777 F. Supp. 1081, 1088 (1991). Judge
Dwyer's ruling set the stage for the adoption of the landmark Northwest
Forest Plan.
In April 2006, under pressure of lawsuits by both the timber
industry and conservation groups, the USFWS agreed to prepare an
updated recovery plan for the threatened Northern Spotted Owl (an early
draft was published in 1992 but it was never officially adopted because
the Secretary of Interior assumed at the time that the NWFP would serve
as a de facto recovery plan). The agency assembled a multi-stakeholder
team consisting of representatives from federal and state agencies,
timber industry, and conservation groups to develop an updated recovery
plan. This team did not include any of the many well-recognized,
independent scientists with expertise in owl biology. The USFWS charter
document under which the recovery team made decisions emphasized that
``recommendations for recovery actions from the Team will be made in a
collaborative manner, striving for the highest level of consensus
possible.
In late September of 2006, the recovery team forwarded its draft
plan to USFWS headquarters in Washington D.C. for internal review. The
team recommended a recovery strategy that was anchored mostly in the
existing LSR network. We reached consensus on this approach because it
was the most scientifically credible way to recover the owl. The
recovery team also agreed it was the most efficient way to integrate
the NWFP and the recovery plan. The scientific rationale for using
fixed reserves for conserving spotted owls and other old-growth
dependent species has been repeatedly reaffirmed in the scientific
literature (e.g., Courtney and Franklin 2004, Thomas et al. 2006, Noon
and Blakesley 2006, Strittholt et al. 2006). For instance in a USFWS-
commissioned five-year ``status review'' of the Northern Spotted Owl in
2004, two scientists, Drs. Steven Courtney and Jerry Franklin concluded
that:
``the Reserve and Matrix strategy of the NWFP has been
successful and is performing as expected'' (Chapter 9, page 9); and
the NWFP has made important contributions to protect and
recover the endangered owl and without the plan the situation of
Northern Spotted Owls would be far bleaker'' (Chapter 9, page 15).
In addition, the latest analyses of demography of spotted owls
(Anthony et al. 2006) has shown that owls are reproducing and surviving
better on federal land managed under the NWFP than on non-federal lands
where logging is much greater (i.e., the annual rate of owl population
declines on nonfederal lands was more than twice that on federal
lands).
Although the recovery team agreed that a network of protected LSRs
would be the foundation of the spotted owl recovery strategy, we did
not reach consensus on specific habitat provisions for the owl,
particularly in the southern part of its range. The team agreed to
forward our science-based recommendations to USFWS headquarters on the
condition that the draft plan undergo rigorous scientific peer review,
and that substantive revisions be made, if necessary, pending results
of peer review. The USFWS initially rejected this request for peer
review, citing insufficient time as a constraint, although more than
five months elapsed during which the agency prepared the draft for
publication. The recovery team was notified on April 24, 2007 (two days
before public release of the draft plan) that the peer review process
is finally underway.
In late September, the Pacific Regional Director of the Fish &
Wildlife Service, Ren Lohoefener, notified the recovery team of the
existence of a ``Washington [DC] Oversight Committee,'' consisting of
high-ranking officials from the departments of Agriculture and
Interior, who would scrutinize the draft recovery plan (detailed in
attached Exhibit A). At the time, the oversight committee included
Julie MacDonald, who was under investigation for political interference
in other ESA matters and recently resigned from her position. On
October17, the recovery team was told that the Oversight Committee
rejected the September draft recovery plan, in part, because it was
based on the NWFP's network of LSRs and therefore did not provide
enough ``flexibility.'' The Oversight Committee instead directed the
recovery team and federal agency staff to rewrite the plan, and to
include a second alternative--Option 2--that does not rely on fixed
habitat reserves.
I want to emphasize that Option 2 is not a product of the recovery
team. In fact, on February 7, Mr. Ren Lohoefener, Pacific Regional
Director of USFWS, gave direction to the team to ``don't spend any more
time on Option 1, the majority opinion of the Washington oversight
committee is they prefer Option 2.'' This new direction was not based
on sound science but was designed to give the Forest Service and the
BLM the discretion to exempt public forests from the NWFP in response
to ``friendly'' lawsuits filed by the timber industry (known as the
``global settlement agreement''--see attached Exhibit B) to triple the
amount of logging in the region. The USFWS also received direction from
the Oversight Committee to do the following.
De-emphasize past science and rely on ``new science''--we
were told to base habitat recommendations on a handful of studies in
the southern part of the owl's range. Two of those studies point to the
owl's reliance on a mixture of forest age classes (Franklin et al.
2000--northern California Klamath province, Olson et al. 2004--Oregon
Coast Range). However, the authors of both of the studies specifically
cautioned against using the results to guide forest management actions
for spotted owls. A third study, also in the southern range near
Roseburg, Oregon did not conclusively confirm spotted owl use of
younger forests. Unfortunately, the USFWS ignored these warnings and
wrote a draft plan that inappropriately recommended region-wide habitat
criteria that significantly underestimate the old growth habitat needs
of the owl. The clear intent of this directive was to downplay the
importance of old growth habitat to allow additional old growth logging
on federal lands (detailed below).
``Flip and switch'' the presentation of threats to the
spotted owl in the draft plan by minimizing the importance of habitat
loss and placing more emphasis on Barred Owls--An October 25 memo
directed the recovery team to ``indicate [the Barred Owl] was [the]
only threat given priority number 1''and summarize the habitat threats
discussion into less than a page.'' An untitled document dated October
27 and distributed to the team at a meeting in Portland by Dave Wesley,
recovery team leader, contained instructions from Lynn Scarlett, Deputy
Director of Interior, directing the recovery team to make the new
option (Option 2) ``less focused on habitat preservation.'' Although
Barred Owls have emerged as a recent threat to spotted owls (Kelly et
al. 2003, Crozier et al. 2006), the science of conservation biology and
endangered species management is clear on this point--when a species is
faced with multiple threats it is best to conserve more habitat for it,
not less.
``De-link the recovery plan from the Northwest Forest
Plan''--On October 18, we received notice from the USFWS to ``de-link
the owl plan from the Northwest Forest Plan'' to provide the Forest
Service and BLM with more ``flexibility'' (see attached Exhibit A). On
October 26, Mr. Lohoefener admitted that the Forest Service and BLM
were driving the recovery plan revisions demanded by the Oversight
Committee, and stated that the end product would have to be flexible
enough ``to be acceptable to the Forest Service and BLM.'' Under
intense questioning from recovery team members, both Dave Wesley, USFWS
recovery team leader, and Cal Joyner, the Forest Service representative
on the recovery team, explained that ``flexibility'' meant giving the
Forest Service and BLM discretion to alter or eliminate Managed Owl
Conservation Areas (or MOCAs as in Option 1 of the draft recovery plan)
from the recovery plan. Notably, the BLM is currently revising its
forest plans on 2.4 million acres in western Oregon and is considering
alternatives that do not include fixed reserves (see Exhibit B) and the
Forest Service recently excluded from NEPA its forest plan revisions
(Federal Register Vol. 71, No. 241, Friday, December 15, 2006, pp
75481-75495.). It should be noted that one of the primary reasons why
the owl was listed in 1990 was ``inadequacy of regulatory mechanisms.''
2) The recovery plan includes habitat provisions recommended for the
owl that are considerably less than currently afforded the owl
under the NWFP
Option 1 vs. NWFP--a comparison of the habitat provisions in Option
1 vs. the habitat provisions in the NWFP for the LSRs (Tables F1 and F2
in Appendix F (errata copy) of the draft recovery plan vs Table F1 and
Table 3-8 in Lint 2005) indicates that Option 1 could reduce the
estimated amount of habitat capable for owls by 27%.
This is mainly because the Option 1 reserve network (MOCAs) does
not include all of the existing LSRs. Option 1 also lowers the habitat
bar for owls in two additional ways: (1) setting delisting thresholds
for suitable owl habitat at 50-70% within the reserve network (instead
of the 100% late-successional goal for LSRs under the NWFP), and (2)
allowing delisting to be considered when an arbitrary 80% of the MOCAs
in the Option 1 reserve network meet the low regional habitat
criterion. Both of these provisions could result in premature delisting
of the owl if habitat is judged to be sufficient based on this
standard.
Option 1 vs. Option 2--Option 2 could result in even greater
reductions than Option 1 because the rule set allows the Forest Service
and BLM to consider smaller reserves by limiting the size of owl
habitat blocks relative to Option 1. When applying the rule set for
Option 2, the recovery team estimated that 823,000 acres of old-growth
habitat could be left out of the network of habitat blocks compared to
Option 1 (unpublished recovery team exercise). In particular, because
Option 2 does not include fixed habitat reserves, only includes an
``example'' of possible habitat block locations (Appendix B), and does
not include total acreage figures, it may not meet the requirements of
the Endangered Species Act regarding ``measurable, objective''
standards for delisting criteria.
I would like to point out that only about 7 million acres of the
24.4 million acres of public forests in the PNW is currently old growth
(Strittholt et al. 2006) and not all of this is protected (e.g., 1
million acres of old forest can be logged in the ``matrix''). This
represents but a fraction (15%) of historic conditions (all ownerships)
and therefore every acre of old growth is important. Conversely, the
vast majority of public and non-federal lands include younger forest
age classes.
I would also like to point out that recent demography studies of
spotted owls found that 9 of 13 study areas across the range of the owl
had declining populations and the rate of decline was accelerating
(Anthony et al. 2006). The bottom line here is that the owl is
declining from multiple causes at a time when the USFWS is proposing a
recovery plan that lowers the bar on habitat protections under both
options.
The flexibility the administration desires cuts both ways--in
fact--there is an even stronger scientific case to be made for
enlarging reserves for the spotted owl due to the increased threats
posed by Barred Owls and loss of habitat from fire. I and other team
members mentioned this repeatedly during recovery team meetings, yet
this science-based recommendation was rejected by the USFWS.
Unfortunately, the habitat provisions in both options could result in
the need to up-list the owl to endangered status in the future should
populations continue to decline and habitat be further reduced by
logging facilitated by inadequate regulatory mechanisms. This could
eventually result in less flexibility not more.
3) While oversight of agency documents by department officials in
itself is not unusual, in this case political interference
clearly allowed the Forest Service and BLM to have an
inappropriate amount of influence that resulted in a recovery
plan based more on the timber objectives of land managers than
on the best available science.
In closing, I want to underscore the unusual makeup of the recovery
team and the change in process under which it operated when the
Oversight Committee took charge late in the process. Typically,
recovery plans are developed by recognized experts in the ecology and
management of the listed species to ensure that recovery objectives and
delisting criteria are based on best available science (Department of
the Interior and Department of Commerce 1994). Under the ESA, the
purpose of recovery plans is to get listed species to recover to the
point where delisting is warranted and protection under the ESA is no
longer needed. In order for a listed species to move from the
``intensive care unit'' to a viable population, recovery plans must be
based on best available science. Obviously, that was not the case here
as the USFWS did not include the highly recognized owl experts on the
recovery team whose seminal work was cited and, in some cases,
misrepresented.
The political interference documented in this case led to
misapplication of habitat provisions under both options and the
creation of Option 2, which is by no means a recovery team product nor
was it generated out of consensus. In fact, according to a news story
in the Land Letter on May 3, Dave Wesley, leader of the agency's
spotted owl recovery team, stated ``the less-defined second option was
requested by Interior Department political appointees and other high-
level officials in Washington, D.C.''
Therefore, in spite of nearly a year of participation as a recovery
team member, I cannot stand by this document. The agency, however, did
eventually and only recently agree to conduct peer review of the plan.
Should peer review confirm the scientific flaws noted in my testimony,
the recovery plan should be rewritten by working closely with
recognized owl scientists to ensure it is based on the best available
science without further political interference. Clearly, in the case of
the draft spotted owl recovery plan science took a back seat to
politics.
Literature Cited
Anthony, R.G. and several others. Status and trends in demography of
Northern Spotted Owls. Wildlife Monographs 163. 48 pp.
Courtney, S., and J.F. Franklin. 2004. Chapter 9: Conservation
Strategy. In: S.P. Courtney, J.A. Blakesley, R.E. Bigley, M.L.
Cody, J.P. Dumbacher, R.L. Fleischer, A.B.
Franklin, J.F., R.J. Gutierrez, J.M. Marzluff, and L. Sztukowski (eds).
2004. Scientific evaluation of the status of the Northern
Spotted Owl. Sustainable Ecosystems Institute, Portland, OR.
Crozier, M.L., and several others. 2006. Does the presence of barred
owls suppress the calling behavior of spotted owls. The Condor
108:760-769.
Department of the Interior and Department of Commerce. 1994. Endangered
and threatened wildlife and plants: notice of interagency
cooperative policy on information standards under the
Endangered Species Act. Friday, July 1, 1994 (34271).
Dugger, K.M., F. Wagner, R.G. Anthony, and G.S. Olson. 2005. The
relationship between habitat characteristics and demographic
performance of Northern Spotted Owls in Southern Oregon. The
Condor 107:863-878.
Franklin, A.B., D.R. Anderson, R.J. Gutierrez, and K.P. Burnham. 2000.
Climate, habitat quality, and fitness in Northern Spotted Owl
populations in northwestern California. Ecological Monographs
70:539-590.
Kelly, E.G., E.D. Forsman, and R.G. Anthony 2003. Are barred owls
displacing spotted owls? The Condor 105:45-53.
Lint, J. 2005. Status and trends of Northern Spotted Owls populations
and habitat. USDA PNW-GTR-648.
Noon, B.R., and J.A. Blakesley. 2006. Conservation of the Northern
Spotted Owl under the Northwest Forest Plan. Conservation
Biology 20:288-296.
Olson, G.S., and several others. 2004. Modeling demographic performance
of Northern Spotted Owls relative to forest habitat in Oregon.
J. Wildlife Management 68:1039-1063.
Strittholt, J.R., D.A. DellaSala, and H. Jiang. 2006. Status of mature
and old-growth forests in the Pacific Northwest. Conservation
Biology 20:263-374.
Thomas, J.W., J.F. Franklin, J. Gordon, and K. N. Johnson. 2006. The
Northwest Forest Plan: origins, components, implementation
experience, and suggestions for change. Conservation Biology
20:277-286.
NOTE: Exhibits have been retained in the Committee's official
files.
______
Response to questions submitted for the record by
Dominick A. DellaSala, Ph.D.
Questions from Republican Members
I would like to thank the members of the Committee for the
opportunity to respond to these follow-up questions from the hearing.
My responses to each question are set out below. In general, a number
of the questions appear to raise issues of a legal nature. While I am
not an attorney, my testimony before the Committee was offered as a
conservation biologist and scientist. Nonetheless, I have attempted to
respond to the Committee's questions to the best of my ability.
(1) What role should the states have in protecting endangered species?
Do you agree with Ms. Rodd that the Fish and Wildlife Service
should not devolve management responsibilities to the states?
States control road building, energy development, including
alternatives, and home development which could affect listed
species.
Response: The Endangered Species Act is a federal environmental
law. It already recognizes an appropriate role for the states in a
number of places explicitly in the following provisions: (1) 16 U.S.C.
Sec. 1531(a)(5) finds that encouraging state involvement in species
protection is important to the success of the Act; (2) Sec. 1531(c)(2)
recognizes a congressional policy of cooperation with states to resolve
water resource and endangered species issues; (3) Sec. 1533(b)(1)(A)
directs the Fish & Wildlife Service to consider state efforts to
protect species in making listing decisions; (4) Sec. 1533(b)(1)(B)
directs the Fish & Wildlife Service to consider in making listing
decisions species identified by states as in need of protection; and
(5) Sec. 1535 generally establishes a program for cooperation with
states in species conservation. The ESA also implicitly recognizes
cooperation with the states as, for example, 16 U.S.C. Sec. 1532(13)
includes officers, employees, agents, departments, and
instrumentalities of states as ``persons'' generally subject to all
applicable requirements of the Act. One of the reasons we need a
nation-wide law for threatened and endangered species is because many
species cross state lines or are subjected to impacts that come from
outside a particular jurisdiction. Because the ESA is a federal law,
any role for the states in protecting listed species should be
consistent with the purposes of the ESA and should comply with its
provisions.
(2) Many endangered species are located on private property. Do you
believe that the agency should not weigh the effects of
proposed listings on land owners in their deliberations to list
a species?
Response: Section 4 of the ESA sets out the factors the Fish &
Wildlife Service may consider in determining whether a species should
be listed as threatened or endangered (see 16 U.S.C.
Sec. 1533(a)(1)(A)--(E)). These factors are appropriately focused on
sources of biological threats to a species because the question of
whether a species faces a sufficiently imminent risk of extinction to
warrant listing is fundamentally one of biology. The ESA also
appropriately allows consideration of the effects of a listing on
private property owners and others in provisions other than the listing
criteria of section 4 (see, for example, 1533 U.S.C. Sec. (b)(2) which
allows the Fish & Wildlife Service to exclude specific areas of habitat
critical to a species from designation as critical habitat for economic
reasons so long as the exclusion will not result in the extinction of
the species). This separation of the biological question of whether a
species should be listed as threatened or endangered from other issues
about how to respond to a listing is logical and well-founded. From a
scientific perspective, the effect of a listing on a land owner is not
germane to the biological question of the degree of risk the species
faces.
(3) When the agency designates critical habitat doesn't the law allow
the balancing of scientific findings with economic and other
considerations?
Response: Section 4(b)(2) of the ESA specifically provides that:
``the Secretary may exclude any area from critical habitat if he
determines that the benefits of such exclusion outweigh the benefits of
specifying such areas as 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'' (see also 50 C.F.R.
Sec. Sec. 424.12 to 424.21--regulations that govern designation of
critical habitat recognizing role of economic impacts and other
considerations in final habitat designations). Thus, it would appear
that the ESA and its implementing regulations already allow the
consideration of economic issues in making a critical habitat
determination under specific circumstances and standards. In my view,
this approach adequately allows the balancing of scientific findings
with economic and other considerations.
(4) As a biologist, have you ever been in a position where there were
other scientists that did not agree with a position you took
based on research?
Response: Many apparent disagreements among scientists arise at
first because they are addressing different but related issues, working
from different assumptions, collecting different data, or using
different methodologies. When they compare assumptions and data and
analyze them objectively to determine which are most appropriate and
reliable, areas of disagreements are usually reduced or eliminated. It
is for this reason that focusing on science and relying on the best
available scientific and commercial data--as the ESA does--provides the
best foundation for reliable decisions about species and their
conservation.
In addition, while it is certainly not unusual for scientists to
disagree over research findings, these disagreements are best resolved
through the peer review process of which I have participated throughout
my 20-year career. Peer review is the gold standard by which quality
science is objectively judged. When disagreements over published
articles occur, they also may be resolved through point and counter
point articles and additional research. In this manner, scientists
benefit by rigorous, independent review and exchange of ideas, and
decision makers benefit by having the best science available to make
informed policy choices.
As subject editor for two scientific journals, The Natural Areas
Journal and Conservation Biology, I have overseen the peer review
process using a refereed and independent (blind) peer review process.
This is the best standard we have for resolving scientific debate. My
own research, which includes over 150 published articles, has gone
through this type of rigorous, independent peer review.
(5) What do you think of Mr. Horn's testimony where he describes
making policy decisions after receiving differing scientific
recommendations? Do you agree that in those cases it is
necessary for a policy person to make decisions that not all
scientists would agree with?
Response: There is a legitimate and appropriate difference between
science and policy. Scientific issues depend on detailed observations,
objective analysis of data, and carefully drawn conclusions based on
the facts and analysis. Policy issues often reflect other values,
including societal ones. The key, however, is for policy makers to
explain their policy choices in light of setting aside such findings
where they choose to do so. Only with such clear and careful
articulation of the grounds for policy choices can the public and
others evaluate whether a policy choice is appropriate in light of the
broader policy choices and standards set forth in our laws.
Agency officials or decision-makers sometimes choose to ignore
scientific findings in making policy choices. In these cases, the
foundation on which those decisions were made is undermined with the
likely outcome of a poor and risky decision. For this reason, it is
important that decisions by policy persons are made in an open and
transparent manner so that consequences can be appropriately weighed by
society. Far worse, however, are the cases in which decision-makers
seek to manipulate, distort, overturn, or suppress scientific findings
in order to make them comport with their policy preferences. There were
numerous examples given by witnesses at the May 9 hearing that point to
an unprecedented manipulation of science by agency officials in this
administration. These efforts essentially rely on subterfuge to deprive
the public and the Congress of any ability to evaluate the soundness of
decisions. In my view, this is an inappropriate approach to the
intersection between science and policy that I have tried to focus in
on one particular instance--the preparation of a draft recovery plan
for the Northern Spotted Owl--in my testimony to the Committee. Indeed,
under the Endangered Species Act, the overriding policy of the Fish &
Wildlife Service must be ``to provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be
conserved, [and] to provide a program for the conservation of such
endangered species and threatened species''. 16 U.S.C. Sec. 1531(b). In
the case of the spotted owl recovery plan, preconceived outcomes got in
the way of sound science.
(6) Would you agree that science is never clear cut, that two
scientists could research an issue and come up with different
results or opinions?
Science is often quite clear cut, especially where there is
sufficient information to draw reliable conclusions. In cases where it
is not, scientists lack enough information to draw reliable inferences.
Even in these situations, however, scientists often have methods of
analysis that can provide useful and reliable insights in the face of
uncertainty and risk assessment and most often couch there statements
in probability terms. Where scientists do ``research an issue and come
up with different results or opinions,'' as I noted above, it often
involves different assumptions, analytical methods, and so on. For that
reason, these apparent differences can usually be resolved--if not
immediately then over time--by scientists working together, comparing
their results, refining their analyses, and stating their confidence
limits. The idea--suggested by the question--that there is no such
thing as a right answer in science, is resolvable through peer review
and statements of confidence in the findings.
In addition, reputable scientists would not reach hasty conclusions
when the facts are largely unknown or in dispute. The risks to
endangered species, and society, go up when policy decisions are based
on scientific uncertainty (e.g., findings that have low confidence
levels or have limited application) and poor choices. This is
especially troubling when the science is outright ignored, manipulated,
or interfered with in order to support preconceived outcomes. To
illustrate this point, I would like to discuss a particular case where
hasty or incorrect policy decisions could lead to more costly measures
or, even worse, changes that are impossible to reverse.
In the case of threatened Northern Spotted Owl, there is a
scientific consensus that the owls' survival depends on protecting old-
growth forests from logging. This is based on more than two decades of
research (see Anthony et al. 2006). The draft spotted owl recovery
plan, however, falsely concluded that the owl does not need a high
proportion of old-growth forests to survive. This conclusion was based
on just two studies (Franklin et al. 2000, Olson et al. 2004) in the
southern portion of the owls' range where owls were reported using a
mixture of forest age classes (not just old growth). However, a third
study (Dugger et al. 2005) by some of the same researchers in a nearby
study area could not confirm these findings. When a small number of
studies produce results that are inconsistent with a larger body of
work, the proper scientific approach is to treat these with great
caution and work to 1) confirm whether they are correct or not, and 2)
if correct, how far can they be reliably extrapolated? The following
statements from these researchers underscore my concerns:
``...we do not recommend that forest managers use our
modeling results as a prescription for managing habitat either within
the Oregon Coast Range or elsewhere until other similar studies have
been conducted.'' (Olson et al. 2004).
``I have repeatedly noted that the monograph (Franklin et
al. 2000) represents just a first approximation of these relationships,
which form the basis for future studies, but in itself should not be
considered definitive.'' (Dr. Alan Franklin in a November 21, 2006
letter to Paul Phifer, Fish & Wildlife Service, which was forwarded to
the recovery team).
Unfortunately, these warnings were ignored by Fish & Wildlife
Service which instead chose habitat provisions for the owl that low-
ball old-growth protections based on false interpretations of the two
studies. This is a clear-cut example of making hasty decisions that
could result in premature delisting of the owl, or even worse,
continued and irreversible habitat losses. In this case, science was
misapplied and statements of scientific uncertainty ignored in order to
support a preconceived outcome dictated by the Washington Oversight
Committee as detailed in my testimony.
Because conservation science is the science of ``crisis
management,'' especially in the case of endangered species, prudent
decision making should be based on the precautionary principle. Old
growth habitat once logged takes many decades to re-grow. Because the
owl requires old growth over most of its range, as most owl biologists
have concluded, logging these forests pushes the species closer to
extinction and could trigger an up-listing to endangered status,
resulting in decisions more costly socially and economically. Most
notably, the owl is an indicator species of old-growth forests, which
contain a broad suite of values widely supported by society. These were
considered in the Northwest Forest Plan, and any action that weakens
the Plan has implications that reach beyond the fate of the Northern
Spotted Owl.
Literature Cited
Anthony, R.G. and several others. Status and trends in demography of
Northern Spotted Owls. Wildlife Monographs 163. 48 pp.
Dugger, K.M., F. Wagner, R.G. Anthony, and G.S. Olson. 2005. The
relationship between habitat characteristics and demographic
performance of Northern Spotted Owls in Southern Oregon. The
Condor 107:863-878.
Franklin, A.B., D.R. Anderson, R.J. Gutierrez, and K.P. Burnham. 2000.
Climate, habitat quality, and fitness in Northern Spotted Owl
populations in northwestern California. Ecological Monographs
70:539-590.
Olson, G.S., and several others. 2004. Modeling demographic performance
of Northern Spotted Owls relative to forest habitat in Oregon.
J. Wildlife Management 68:1039-1063.
______
Ms. Rodd. Chairman Rahall.
The Chairman. Yes, ma'am.
STATEMENT OF MS. JUDITH SCHOYER RODD,
DIRECTOR, FRIENDS OF BLACKWATER
Ms. Rodd. Thank you for the opportunity to appear before
your Committee.
My name is Judith Schoyer Rodd. I am the Director of
Friends of Blackwater, a citizen's organization with 1,000
dues-paying members, and offices in Tucker County and
Charleston, West Virginia.
We West Virginians are extremely proud of our beautiful
mountains, rivers, and rural communities, and we are fierce and
zealous in their defense and protection. We are particularly
proud of the West Virginia Highlands, a little bit of Canada in
Appalachia.
I am here on behalf of the Save our Squirrel, or SOS
Coalition, a consortium of 25 groups that have banded together
to prevent the U.S. Fish and Wildlife Service from removing
Federal endangered species protections from the West Virginia
Northern Flying Squirrel, Glaucomys sabrinus fuscus.
Our coalition member groups include the Wilderness Society,
the National Wildlife Federation, the American Lands Alliance,
the Center for Biological Diversity, the Southern Appalachian
Bio Diversity Project, the Southern Appalachian Forest
Coalition, Heartwood, Stewards of the Potomac Highlands, and
the Maryland Conservation Council.
Ginny, a flying squirrel as we like to call her, and her
babies are the signature species of our state's highest
mountains. Ginny is a relic of the last ice age. When the
glaciers retreated, Ginny's ancestors were isolated on the high
mountain ridges of six West Virginia counties and one in
Virginia.
Ginny has evolved a remarkable lifestyle, surviving a
demanding and specialized habitat--feeding at night on
underground fungi that grow in the cool, moist forest and
mountain tops.
Ginny has been on the Federal endangered species list since
1985. In the fall of 2006, officials at the Fish and Wildlife
Service announced a fast-track de-listing proposal for Ginny.
The proposal developed in secret without input from official
recovery plan authors is to strip all Federal protections from
the West Virginia Northern Flying Squirrel. This proposal
generated a huge negative public reaction. The agency says that
the public cannot see 2,325 pages in the agency's files on de-
listing.
Members of Congress, this isn't national security. What can
be so secret about a squirrel? The agency's stealth de-listing
plan is illegal and absurd procedurally and substantively.
Fish and Wildlife Service admits it has no idea how many
squirrels there are. The threats to Ginny and her habitat are
growing, not shrinking. The meager scientific data on Ginny's
habitat and likely future has been cherry picked and
mischaracterized to support a clearly pre-determined
conclusion.
The leading scientist who has studied the squirrel for
decades has opposed the de-listing proposal. More than 5,000
people have sent comments to Fish and Wildlife Service opposing
the plan, and we have submitted a 50-page comment letter
refuting every assertion in the agency's proposal.
People in the agency tell us they have no funding to
implement the recovery plan, and instead they are planning how
to scrap the recovery plan altogether. Certainly it would solve
a lot of problems for everyone but the species and its habitat.
It is shameful and shocking to learn that what we are
experiencing in West Virginia is a symptom of a greater
problem--the attempted rollback of endangered species
protection across America by political appointees who appear to
despise the very law they are sworn to uphold.
We join with Americans everywhere in saying that we will
not tolerate any rollback of the protections of the Endangered
Species Act.
As I speak to you today, Ginny is nursing her babies in a
birch-barked line nest. Ginny can survive the cold mountain
nights, but she can't protect herself from Beltway
machinations. It is up to us to protect Ginny, and all the
other wonderful parts of the creation.
Our SOS, Save Our Squirrel Coalition represents millions of
Americans who expect nothing less from our government, and that
is why I would like to thank you for the opportunity to come to
Washington and tell our story. I have included further remarks
in my written testimony, and will be happy to take any
questions.
[The prepared statement of Ms. Rodd follows:]
Statement of Judith Schoyer Rodd, Director, Friends of Blackwater,
on behalf of the ``SOS!--Save Our Squirrel'' Coalition
Thank you for the opportunity to appear before your committee. My
name is Judith Schoyer Rodd. I am the Director of Friends of
Blackwater, a citizen organization with one thousand dues-paying
members, and offices in Tucker County and Charleston, West Virginia.
We West Virginians are extremely proud of our beautiful mountains,
rivers, and rural communities, and we are fierce and zealous in their
defense and protection. That is why I am appearing today on behalf of
the ``SOS!--Save Our Squirrel'' Coalition, a consortium of 25 groups
that have banded together to prevent the U.S. Fish and Wildlife Service
from removing federal endangered species protection for the West
Virginia Northern Flying Squirrel, (Glaucomys sabrinus fuscus). Our
Coalition member groups include The Wilderness Society, American Lands
Alliance, The Center for Biological Diversity, Southern Appalachian
Biodiversity Project, Southern Appalachian Forest Coalition, Heartwood,
Stewards of the Potomac Highlands, and Maryland Conservation Council.
``Ginny'' the flying squirrel, as we like to call her, is the
``signature species'' of our State's highest mountains. Ginny is a
relic of the last Ice Age. When the glaciers retreated, Ginny's
ancestors were isolated on the high mountain ridges of six West
Virginia counties (and one in Virginia.) Ginny has evolved a remarkable
lifestyle, surviving in a demanding and specialized habitat, feeding at
night on underground fungi that grow in the cool, moist, forested
mountaintops.
Ginny has been on the federal Endangered Species List since 1985.
In the Fall of 2006, officials at Fish and Wildlife announced a fast-
track ``de-listing'' proposal for Ginny. The proposal, developed in
secret, without input from official recovery plan authors, is to strip
all federal protections from the West Virginia Northern Flying
Squirrel.
This proposal generated a huge negative public reaction. The agency
says that the public cannot see 2,325 pages in the agency's files on
de-listing. Members of Congress--this isn't national security. What can
be so secret about a squirrel?
The agency's stealth ``de-listing'' plan is illegal and absurd--
procedurally and substantively. Fish and Wildlife admits it has no idea
how many squirrels there are. The threats to Ginny and her habitat are
growing, not shrinking. The meager scientific data on Ginny's habitat
and likely future has been ``cherry-picked'' and mischaracterized, to
support a clearly predetermined conclusion. The leading scientist who
has studied the squirrel for decades has opposed the de-listing
proposal.
More than 5,000 people have sent comments to Fish and Wildlife
opposing the plan, and we have submitted a fifty-page comment letter,
refuting every assertion in the agency's proposal. Members of Congress,
people in the agency tell us they have had no funding to implement the
recovery plan, and instead they are planning how to scrap the recovery
plan altogether. Certainly it would solve a lot of problems--for
everyone but the species and its habitat!
It is shameful and shocking to learn that what we are experiencing
in West Virginia is a symptom of a greater problem. The attempted
rollback of endangered species protection across America--political
appointees who appear to despise the very law they are sworn to uphold.
We join with Americans everywhere in saying we will not tolerate any
rollback of the protections of the Endangered Species Act.
As I speak to you today, Ginny is nursing her babies in a birch-
bark lined nest. Ginny can survive the cold mountain nights, but she
can't protect herself from Beltway machinations. It's up to us to
protect Ginny--and all of the other wonderful parts of the Creation.
Our ``SOS--Save Our Squirrel'' Coalition represents millions of
Americans who expect nothing less from our government. That's why I
thank you for this opportunity to come to Washington and tell our
story. I have included further remarks in my written testimony and I
will be happy to take any questions.
Issues in FWS implementation of the Endangered Species Act nationally.
I would like to make the following points about the importance of
endangered species recovery plans. The Endangered Species Act requires
FWS to develop recovery plans for endangered species. Recovery plans
are a roadmap for protection and recovery of the species. For a species
to be de-listed or downlisted, it must meet the recovery criteria
contained in the recovery plan.
The Bush Administration has completed fewer recovery plans than any
administration since the Carter administration. To date, the Bush
Administration has completed just 100 recovery plans, compared to 577
under the Clinton administration and 174 under the first Bush
administration. Moreover, the Bush administration has interfered with
development of recovery plans to an unprecedented degree.
The Apache trout recovery plan is one example. Then-regional-
director Dale Hall went around the Apache Trout Recovery Team to revise
the Apache Trout Recovery Plan to make it easier to de-list the trout.
Over the objections of the Team Members the weaker, revised plan was
adopted. The Northern Spotted Owl recovery plan is another example of
interference in the development of recovery plans.
The Bush administration has also ignored recovery plan criteria in
order to speed downlisting and de-listing of species, and not only in
the case of the West Virginia northern flying squirrel. For example, in
April 2006, FWS recommended downlisting the Florida manatee from
endangered to threatened, even though it admitted the manatee had not
yet met the downlisting criteria established by a panel of scientists
in 2001 to assess the manatee's progress, and contained in the recovery
plan. FWS claimed it ignored those criteria and instead followed the
legal definitions of ``endangered'' and ``threatened.'' FWS cancelled
its downlisting plans shortly afterward after an outcry from scientists
and the public.
I also wish to address the recently leaked proposed changed Fish
and Wildlife Service regulations for the Endangered Species Act, which
exemplify the contrarian approach of the administration to science. The
administration's draft regulations would limit scientists' ability to
do what is needed to recover species. This developing regulatory
package is an attempt to formalize the administration's approach of
suppressing and distorting endangered species science to get the
outcomes it wants. Specifically, the proposed changes would tie
scientific hands regarding decisions about whether to list a species as
threatened. A species should be listed as threatened if it is likely to
become endangered within ``the foreseeable future''. Currently, this
definition is left up to scientists, because it varies case by case.
The draft regulations would arbitrarily define ``foreseeable future''
as ``10 generations or 20 years, at the discretion of the Service'' in
most cases. What would that mean for species like the WV Flying
Squirrel, which is threatened in the long term by global warming?
The draft regulations also improperly devolve authority to the
states. Currently, States are encouraged to participate in recovery
planning, listing decisions and critical habitat designations, but the
U.S. Fish and Wildlife Service maintains the ultimate responsibility
and authority to make a scientifically-based, non-political decisions.
It often does so over the objections of state agencies, which are more
beholden to local political pressure. The Administration's draft
regulations say ``States, may request and be given the lead role in
almost every aspect of the Act, including, but not limited to,
[listing, consultation, and Habitat Conservation Plans.]'' There are
many reasons, from political pressure in-state to resources of the
state agency, for caution when handing such responsibilities to the
states.
Comments On the Proposed De-Listing of the West Virginia northern
flying squirrel
The proposed de-listing rule for the West Virginia northern flying
squirrel (WVNFS) is deeply flawed and fails to meet the basic
requirements of the Endangered Species Act for recovery of a species.
The squirrel is not going to ``fly solo'' as the Fish and Wildlife
Service claims but instead will glide into extinction under this
proposal. Here are the problems with the proposal.
1. The Administration's process for this de-listing proposal
violates the Endangered Species Act by ignoring the WVNFS Recovery Plan
standards and fails to provide a post-de-listing monitoring plan for
public review and comment.
2. There is no credible information on the flying squirrel
population, which in turn does not allow assessment of population
trends.
3. There is inadequate and misleading information on flying
squirrel habitat.
4. There are flaws in the modeling for flying squirrel presence,
capture counts and habitat needs.
5. The plan relies on the good intentions and interest of others
to protect the squirrel after de-listing despite an inadequate
regulatory framework and lack of funding.
6. There is inadequate analysis of ongoing and cumulative impacts
on flying squirrels, including failure to examine the devastating
effects of:
Climate Change
Energy Development
Private Land Development and Highway Construction
Timbering
Process Concerns
Ignoring the Recovery Plan is Violation of the Endangered Species Act
The WVNFS de-listing proposal is the clearest crystallization to
date of a heretofore background effort by the Bush administration to
dispense with recovery plans by arguing that objective, measurable,
concrete de-listing criteria should be overridden by the five non-
criteria-based listing factors. The Fish and Wildlife Service (FWS)
throws out the Recovery Plan for the squirrel by saying it is too old
and is irrelevant because ``new light'' has been shed and ``new
information has become available'' which is never explained. The
recovery plan was amended as recently as 2001 and the Service has not
and cannot demonstrate that the recovery criteria are scientifically
inadequate. The recovery plan's requirement of population stability is
the bedrock of conservation biology and cannot credibly be replaced by
an unscientific concept of ``persistence,'' and the recovery plan's
requirement of perpetual habitat protection is another important
principle of conservation biology.
It is quite evident that there is nothing inadequate with the
recovery criteria in the plan. The de-listing proposal and 5-year
review certainly do not demonstrate any inadequacies. To the contrary,
its justification for designating the species as recovered follows the
same general logic as the plan: the population is healthy, the species
life history is sufficiently known to be managed, the habitat is
currently protected, the habitat will be protected into the foreseeable
future. Furthermore, the de-listing proposal and 5-year review
repeatedly state that these have been accomplished by implementing the
plan. However the logic doesn't match the facts on the ground.
It is no accident the Service tries to denigrate the Recovery Plan
because it cannot meet the goals for de-listing the squirrel as
outlined by the Plan. First, the Recovery Plan requires that 80% of the
core habitat (Geographic Recovery Areas or GRA's) for the squirrel have
a stable or increasing population for at least ten years. There is no
data indicating whether the WVNFS is stable, increasing or decreasing.
How does the Service deal with this problem? It throws out the goal
because it would prevent de-listing. While not alerting the reader that
it is violating this provision of the recovery plan, the Service
substitutes the demographically meaningless and undefined concept of
``persistence'' to replace population measures. Secondly, the recovery
plan requires that all core habitat areas be managed for the species in
perpetuity. The de-listing proposal admits that they are being managed
under a multiple-use mandate that will result in continued logging of
important squirrel habitat. And thirdly, the recovery plan requires
that high elevation forests be protected in perpetuity, while the de-
listing proposal notes that they may be completely destroyed by global
warming.
Process Out of Order: Need for Comment Period on the Post-De-listing
Monitoring Plan
It is clear from the December 19, 2006 Federal Register Notice and
the meeting on February 9, 2007 between Friends of Blackwater and the
FWS that the agency does not have a post-de-listing monitoring plan in
place. This is a problem for a number of reasons. The ESA requires that
a post-de-listing monitoring plan be published simultaneous with the
de-listing rule. Unless and until such a plan is distributed to the
public, this de-listing rule is arbitrary, capricious, and not in
accordance with the law.
Any purported plan has not undergone full public scrutiny. The
public has a right to comment on the full range of what is proposed in
de-listing the flying squirrel. In failing to provide the post-de-
listing monitoring plan at this time, the FWS is fragmenting the
commenting process and denying the public the opportunity to provide
fully informed comments. A second comment period will be required when
the post-de-listing monitoring plan is completed. The 5-Year Review and
the post-de-listing monitoring plan are inextricably linked. In order
to understand if the assertions of species viability after de-listing
contained in the 5-Year Review are true, it is necessary to know the
monitoring steps proposed to ascertain the state of squirrel viability.
This critical information is missing since the post-de-listing
monitoring plan has yet to be written.
FOIA Request and the Comment Period Deadline
Friends of Blackwater submitted a FOIA request (#2006-00988) on the
West Virginia northern flying squirrel proposed de-listing rule Sept
10th, 2006. We received materials from that FOIA request on December
19th. Friends of Blackwater appealed the partial denial of 2,325 pages
of documents. This appeal was submitted on Feb 2, 2007 (Appeal Number
2007-060). We received phone confirmation that more documents would be
released in February. We have yet to receive any of the released
documents.
We would like an official explanation for the long delay in the
release of these materials. When can we expect to receive these
documents? Withholding documents undermines the rule making process,
and lessens public trust in federal agencies. It further undercuts the
ability of the public to make informed comments when denied access to
legally releasable materials that serve to illuminate the proposed de-
listing. The signatories of this letter request that the comment period
remain open until all documents have been received and reviewed.
Population Concerns
The foundation of wildlife biology is understanding the population
ecology of a species and its habitat. In the absence of population data
the utmost caution must be observed in considering any action they may
directly impact a species or its habitat.
The proposed rule states that de-listing is justified because of
``an increase in the number of individual squirrels'' (proposal at
75924). At the time of listing, ten squirrels where known at four
sites; between 1985 and 2005 there were 1,141 captures at 107 sites
(proposal at 75926). An unknown portion of the captures were
recaptures, thus the 1,141 captures do not represent 1,141 squirrels.
The population size was not known or estimated at any point between
1985 and 2005. These data do not in any manner support the Service's
assertion that the population has increased since 1985, nor has the
Service provided any additional data to support the strange assertion.
The only valid conclusions one can draw about WVNFS populations trends
are 1) the population size is not known now or at any time between 1985
and 2005, 2) the 1985 to 2005 population trend is not known, 3) the
current population trend is not known, 4) some capture sites have been
used relatively continuously since 1985, some have been used
sporadically, some have been abandoned, and many are lacking in
sufficient data to determine whether use has been consistent, sporadic
or abandoned between 1985 and 2005, and 5) the Service has completely
dropped the ball on WVNFS monitoring, having consistently failed over a
20-year period to fund or establish demographically useful surveying
methodology.
A recent analysis of all federally listed species in eight
northeast states determined that all had persisted and 93% had
increased in size or remained stable since listing (Suckling 2006).
Under the proposal's ``persistence'' criteria, all of them should be
removed from the endangered species list. Some such as the piping
plover, roseate tern, and green sea turtle have done considerably
better than persist, they have dramatically increased in size, yet none
have been proposed for de-listing because, unlike the case of the
WVNFS, the Service is requiring that the species meet scientific
recovery criteria established in recovery plans. The Service's
procedure in this case is to ignore the recovery plan and proceed to
de-list in the absence of any explicit recovery criteria based on the
nearly meaningless and poorly defined concept of ``persistence.'' This
clearly violates the Endangered Species Act requirement that the
Service scientifically demonstrate the species is recovered.
Data Analysis of Captures from Field Reporting Forms for WVNFS
To further clarify the number of endangered squirrels captured as
stated in the Fish and Wildlife Service's proposed rule, we analyzed
data from a digital database of squirrel captures provided by the West
Virginia Department of Natural Resources from 1988 through 2006. This
data analysis concluded there were a total of 1,199 captures during
this time period with only 79 recaptures. However, there were some 327
captures that did not include any information about ear tag numbers
placed on captured squirrels with no clear reason for this lack of
information. These 327 records represent a distinct anomaly in the
capture data that seemed to indicate that there may have been as few as
793 unique captures.
Due to this and several other inconsistencies within the data
source we obtained copies of the actual field reporting sheets from the
West Virginia Department of Natural Resources office in Elkins, West
Virginia in order to try to further understand these and other
inconsistencies in the capture data.
Data from available field capture forms was then entered into an
Excel Spreadsheet. A total of 1,233 documents representing research
from years 1985 to 2006 were entered for assessment. As a means of
trying to keep the information as accurate as possible, forms that were
illegible (in part or whole), forms that were duplicates of others, as
well as type written forms that appeared to be summary in nature but
lacked definitive information were excluded for the purpose of data
analysis. After excluding data that fell into those categories, capture
data was assessed for some 1,147 separate events.
Upon review of the capture data, 104 events had been recorded as
recaptures and 114 events were recorded as unknown. For the purpose of
analysis it was assumed that unknown meant it was not possible for any
number of reasons to determine whether the animal had been captured in
previous field studies. This led to the determination (based solely on
the exclusion of captures recorded as recaptured or unknown) that only
929 events remained as possible unique captures.
Further analysis of the data included assessment of the assignment
of tag numbers during capture events. During 275 captures the animal
was not tagged. Reasons for the lack of tagging ranged from escape of
the animal to ``not applicable''. These 275 events also included
several nestlings that were not tagged at the time the data was
recorded. Without tagging of these animals on initial capture it cannot
be known if they were ever recaptured. Analysis of the data from these
1,147 captures presents several inconsistencies in the actual
collection of the field data.
To summarize, analysis results show 114 events where initial
capture or recapture was unknown; 275 instances where a tag number was
not assigned to an animal; and 104 events that were definitively
recaptures. When these numbers are considered, unique squirrel captures
over the last 21 years may only number 654 individuals. Considering
that the squirrel only has an average life span of four years this is a
very small number indeed.
Ecological Issues
In examining the Fish and Wildlife Service's Five-Year Review of
the status of the squirrel on which the proposed delisting rule is
based, one anticipates an extensive review of current literature
related to the WVNFS alongside results of independent research
performed by the agency, supported by expert opinions. Instead one
encounters a synthesis of some current and relevant information
alongside numerous unfounded assertions. Also troubling is the use and
indeed heavy reliance on unpublished, non-peer reviewed science such as
Menzel 2003. Instead of a comprehensive and objective review of the
status of WVNFS, the Five-Year Review fails to address relevant
ecological information and basic principles of conservation biology. In
an effort to correct these deficiencies we present some of the
ecological issues that are ignored by the agency.
The WVNFS has been documented and is known to inhabit
deciduous forests at lower elevations and should not be considered an
obligate to spruce fir forests.
The WFNS is typically considered to inhabit forests with
older growth characteristics such as an all-aged forest structure,
vertical diversity, down woody debris, and a high level of diversity of
plants, animals, fungi, mosses, and lichens. Although the WVNFS is
associated with this habitat it can exists across a broad range of
forest habitats but needs forests with older growth conditions in
enough places across its range to persist.
Protecting only old growth spruce forests will not ensure
the protection of northern hardwoods. Northern Hardwoods communities
must also be protected in reserves of sufficient size. Without knowing
the spatial needs of the WVNFS it is presumptuous to assume that just
protecting small portions of forest will be sufficient to recover the
species.
It is essential to not only maintain reserves of spruce
and northern hardwoods but also to retain their connectivity across the
landscape. Any loss of connectivity via road building, large-scale
logging, etc. should be considered as a substantial threat that has not
been abated at the scale appropriate to recover the species. Studies
indicate that roads can have major impacts to the ability of flying
squirrels to move across the landscape (Weigl et al. 2002).
Other forest health issues that compound the threats to
the WFNVS include: the loss of Eastern Hemlock to the Hemlock Wooly
Adelgid, the loss of Fir to Balsam Wooly Adelgid, the loss of Beech due
to Beech bark Disease, and the impacts of Oak Decline in northern
hardwood communities. Even if it were true that all threats at the time
of listing the WVNFS have been abated (which they most certainly have
not) there are new threats which are growing that may have untold
consequences for the WVNFS. De-listing this species now would strip
away the protections offering it the best chance for survival.
Red Spruce
Role of Spruce in Boreal Habitat
High elevation spruce in the Southern Appalachians is a relict of
widespread spruce occurrence during the Pleistocene. However, spruce is
just one component of this habitat. The proposed de-listing and the
modeling on which the de-listing proposal relies focus on spruce to the
exclusion of other components of boreal habitat. It is simplistic to
imagine that spruce and elevation by themselves determine preferred
habitat for G. sabrinus fuscus.
Habitat Age-Class and the Squirrel
One of the most consistent factors associated with G. sabrinus
fuscus is older growth trees and old growth conditions. This should be
a primary focus of recovery efforts. However, this is in direct
opposition to efforts to ``restore'' spruce forests, as this is likely
to involve harvesting mature tree to be replaced with new regeneration.
Even if spruce regeneration is successful, which is highly unlikely
under a climate change scenario, these immature trees are unlikely to
provide good habitat in any foreseeable future.
Food Sources
The use of food sources by Glaucomys sabrinus fuscus is critical to
an understanding of their habitat use. One study of the G sabrinus
fuscus fecal pellet contents, done by Donna Mitchell of the WV DNR in
1998 gives us some insight into what the squirrel eats. Entitled
``Spring and Fall Diet of the West Virginia Northern Flying Squirrel''
it was published by the American Midland Naturalist in 2001. The
pellets studied were collected from 115 captured squirrels from 1989 to
1991 in the spring and fall. No information was collected for winter
and summer food sources. The spring samples show equal consumption of
buds from red spruce and beech trees and fungus associated equally with
both conifer and broadleaf trees. In the fall, fungi were more widely
eaten, as were beechnuts. Lichen and mosses were also found in the
samples. This small study supports the contention that the squirrel
forages in both northern hardwood and conifer habitat and is not
limited to red spruce forest types.
Model Used to Plan Management is Flawed
Over simplistic models of habitat requirements cannot be used
solely to justify the de-listing of the WVNFS. The interpretation of
this information has led the FWS to draw conclusions on the ecology of
WVNFS and its population that are unsubstantiated. The de-listing
proposal for Glaucomys sabrinus fuscus is heavily based on habitat
modeling (Menzel, 2006). While this modeling is useful as an
interesting addition to characterizing G. sabrinus fuscus, the study
should not be promoted as definitively characterizing the habitat of G
sabrinus fuscus. The model contains untested assumptions, is based on
limited data, is a simplified model that does not account for important
variables in the species' biology, and remains an unverified and
untested model. The model is also being applied outside of its intended
scope and for purposes that are not supported by the study that the
model is based on.
Threats to squirrel from second home and energy development, logging,
road building, and climate change
Road building, mining, gas development, industrial wind and second
home development are all increasing and pose significant threats to the
WVNFS due to habitat fragmentation and removal which the Fish and
Wildlife Service ignores.
Threats to the squirrel from logging continue on both private and
public land. While the Monongahela National Forest claims to have
protected the squirrel from logging under their old and new management
plans, they in fact allow logging in all hardwood stands occupied by
the squirrel as well as logging in mix hardwood and conifer stands to
encourage red spruce to dominate the canopy. They also allow logging to
thin red spruce stands. The Fish and Wildlife Service's claim that the
Forest Service's management plans protect the WVNFS has never been
substantiated.
There is a strong scientific consensus that spruce-fir forests will
disappear from the Southern and Central Appalachians (and probably the
United States) under even the most conservative global warming models.
While some components of the northern hardwood forest will likely
remain in the region, it will likely cease to function as a discrete
ecological community. This will likely result in the extinction of the
WVNFS. In the medium term (i.e., next 100 years), global warming is
probably the greatest threat to the squirrel's existence, yet the de-
listing proposal provides only a cursory glance at the issue. This
violates the Endangered Species Act requirement to employ the best
available scientific information in making de-listing decisions. The
proposal's passing reference, moreover, is miscited, misinterpreted,
and relies on criteria disallowed by the Endangered Species Act. The
final decision must provide a thorough review of the large body of
published scientific studies examining the likely impact of global
warming on the WVNFS and its habit. (See attachment III)
Experts Excluded from Process
Research professors Dr. Peter Weigl and Dr. John Pagels, who were
on the Appalachian northern flying squirrel Recovery Team and had
developed much of the methodology to carry out the recovery goals, were
not invited to work on the de-listing process. They were not told that
de-listing was being considered, only downlisting. Their years of
research would have been invaluable to the Fish and Wildlife Service
personnel working on the Five Year Review of the West Virginia northern
flying squirrel. However, they were not consulted and much of their
research was not used. Dr. Weigl made clear in his comments submitted
for this comment period that he is opposed to de-listing Glaucomys
sabrinus fuscus. Dr. Pagels raised a number of important concerns about
de-listing as well
Conclusions and Recommendations
We believe that the Fish and Wildlife Service has no scientific
basis for de-listing, let alone downlisting to threatened the WVNFS. We
believe that the shoddy work revealed in the proposed rule to de-list
and the Five Year Review show an attempt by the current administration
to move away from the hard science of recovery plan criteria and to de-
list any species that has become a bother. This proposal has undermined
the public's confidence in the scientific work of the Service. We ask
this committee to demand that the Service convene a blue ribbon panel
of independent scientists to review this proposal and the data that it
is based on and come up with a new plan for the WVNFS that will ensure
its protection into the future. Without such a plan it will not ``fly
solo'' but come crashing to the ground and glide into extinction.
[GRAPHIC(S) NOT AVAILBLE IN TIFF FORMAT]
Response to questions submitted for the record by Ms. Judith Rodd
(1) Ms. Rodd, you talk about leaked proposed changes to the Fish and
Wildlife Service's ESA regulations. The Director of the Fish
and Wildlife Service in a letter to Chairman Rahall has
indicated that these ``draft regulations'' were ``never adopted
by the Department or the U.S. Fish and Wildlife Service and
represented just one point of view on the issue''. Do you
believe the Service should have any regulatory authority to
modify how the Endangered Species Act works?
The Fish and Wildlife Service has no ``regulatory authority'' to
modify the substantive requirements and protections of the ESA without
Congressional action. The leaked draft regulations go far beyond any
permissible interpretation or application of the ESA. They are
therefore illegal on their face
(2) You seem to object to the notion that authority be devolved to the
states. Doesn't the Governor and the West Virginia legislature
care about the West Virginia Northern Flying Squirrel? Based on
the fact that the federal government has recovered less than I
percent of the 2,400 listed species, don't you think you might
have a better outcome at the state level?
The federal Endangered Species Act has not only prevented the
extinction of 99% of all species ever listed, it has also put the
majority of listed species on an upward recovery trend. The Fish and
Wildlife Service found in 2004 that of those species with a known
trend, 68% are stable or improving. When properly funded and
implemented by the federal government, the Endangered Species Act is
successful at its core purpose.
(3) You mentioned in your testimony that the Service has no funding to
implement the recovery plan for the West Virginia Northern
Flying Squirrel. Do you know how many species have recovery
plans? Do you know what the Congressional appropriation was for
ESA Recovery efforts in FY'06? Do you know that figure was $16
million more than the last year of the Clinton Administration?
Currently, 1312 species are listed as endangered or threatened, of
which 1077 have approved recovery plans. While appropriations for
recovery have certainly increased during the Bush administration, the
Bush administration has used these funds far less efficiently than did
previous administrations. The Clinton administration completed 577
recovery plans over eight years. The Reagan administration completed
243 plans over eight years. To date, the Bush administration has
completed only 100 plans over six years.
In the face of this need and its own poor record at completing
recovery plans, the Bush administration has consistently requested cuts
to recovery funding. In FY'06 Congress appropriated $73 million for
endangered species recovery--$9 million more than the amount the
administration requested that year. In FY'07 the administration once
again requested a cut to recovery funding, requesting $65 million for
recovery. The House of Representatives again demonstrated that Congress
values endangered species recovery more than the White House by
approving $70.6 million for recovery in FY'07.
(4) If this species has been listed since 1985, what has happened for
the past 22 years?
Under agreements with the U.S. Fish and Wildlife Service, the West
Virginia Department of Natural Resources and the Monongahela National
Forest have conducted nestbox surveys for the flying squirrel. Out of
the 4,000 nestboxes put up only 2% were occupied by the squirrel.
Because the nest box survey protocol differed from year to year and the
surveys were not done on a regular basis the results cannot be used to
calculate the squirrel population.
(5) One of the reasons that the Fish and Wildlife Service has a lack
of financial resources is the endless number of lawsuits. While
I am sure you support lawsuits, since members of your coalition
filed many of them, but wouldn't it be better for the
plaintiffs to take their financial judgements and to spend some
of that taxpayer money helping Ginny and her kids and not just
hiring more attorneys? Are you for Ginny or more lawyers?
In passing the Endangered Species Act, Congress specifically
recognized the need for citizen enforcement of the Endangered Species
Act by including a citizen suit provision. The need for this provision
has never been more clear. The present administration has taken almost
no action to protect the nation's endangered species except under court
order. Indeed, all of the 57 species newly protected by this
administration have followed court order.
Moreover, the administration's claims that litigation is draining
the coffers is almost entirely baseless. Attorneys fees paid to
conservation organizations that successfully sue to force protection of
endangered species are not paid out of the Fish and Wildlife Service's
budget. Instead, they come from the budget of the Department of
Justice. Reflecting this fact, the Fish and Wildlife Service's own
budgetary documents fail to show substantial expenditures on litigation
related expenses beyond carrying out the duties that are required under
the law and necessary for the conservation of species.
Rather, records show that at the end of 2005, the Fish and Wildlife
Service found themselves in the awkward position of not having spent
over $500,000 dollars that they had set aside for litigation related
expenses precisely because attorney's fees are not paid from their
budget. This money was instead spent on making findings to determine if
additional species required the protections of the Act, which is one of
the agency's primary duties.
(6) You state in your written testimony that it would be improper to
devolve authority to the states with regard protecting
endangered species. However, states have always has primacy
with regard to wildlife management in their states. Has West
Virginia adopted any state management measures to protect the
flying squirrel?
The West Virginia state code gives the state primacy over wildlife.
However the state has no state Endangered Species Act (ESA) but instead
has an agreement with the United States Fish and Wildlife Service which
charges that agency with enforcement of the ESA and the funding of
research on endangered species. The West Virginia Department of Natural
Resources does much of the field work on endangered species using
federal funds and submits reports to Fish and Wildlife.
(7) In your written testimony, you list road building, mining, gas
development, industrial wind, and second home development as
significant threats to the flying squirrel. These are actions
controlled by the State, correct? With the limited resources
the Fish and Wildlife Service has to implement the ESA,
shouldn't the state be responsible and take actions to limit
the effect these activities have on the flying squirrel?
Much of this work is regulated by the federal government such as
road building and mining. The state has very limited funding to do the
work. and would be unable to carry out the task.
(8) How does mining effect the flying squirrel? Are you recommending
that mining, gas development and wind energy not be pursued in
West Virginia as alterative fuel sources?
In some cases strip mining removes the forest habitat of the West
Virginia northern flying squirrel. Mining and energy development are
continuing with the West Virginia northern flying squirrel on the
endangered species list. The Fish and Wildlife Service staff consults
with companies and individuals about the effects of their activities on
the squirrel and outlines ways to avoid harm to the squirrel and in
some cases suggests mitigation measures.
Judith Holyoke Schoyer Rodd
Director, Friends of Blackwater
501 Elizabeth St., Room 3
Charleston, WV 25311
[email protected]
Charleston Office Phone 304-345-7663
Charleston Office Fax 304-345-3240
______
The Chairman. Mr. Young.
STATEMENT OF MR. JOHN YOUNG [RETIRED],
BIOLOGIST, U.S. FISH AND WILDLIFE SERVICE
Mr. Young. Mr. Chairman, my name is John Young. I was a
biologist with NOAA Fisheries and the U.S. Fish and Wildlife
Service for my entire 30-year career. My work with both
agencies was relative to implementation of the Marine Mammal
Protection Act and Endangered Species Act. I retired in 2005.
In 2002, I was selected as the first and today the only
Bull Trout coordinator for the Fish and Wildlife Service. My
understanding is that the Pacific Region of the Fish and
Wildlife Service is currently planning to refill this position
after nearly a two-year vacancy.
As Bull Trout coordinator, my job was to serve as a conduit
between field staff of the Fish and Wildlife Service, the
scientific community, the public, and the managers of the Fish
and Wildlife Service in preparing three documents required
under the ESA after a species is listed as threatened or
endangered: a recovery plan, a critical habitat designation,
and a five-year review of the species status.
All of the information I am providing to you today,
including my written testimony, is reflected in the respective
administrative records for these three initiatives. The
administrative records are available from the Pacific Region of
Fish and Wildlife Service in Portland, Oregon.
To prepare the recovery plan, the Fish and Wildlife Service
established recovery teams across the range of Bull Trout in
Washington, Oregon, Nevada, Idaho, and Montana. Recovery teams
were made up of biologists and other stakeholders representing
other Federal agencies such as the Forest Service and Bureau of
Land Management, state fish and wildlife agencies, private
timber companies, private utility companies, private ranchers
and farmers, and others.
The recovery plan was drafted and released for public
comment. The draft plan was also peer reviewed by fishery
biologists identified by the American Fishery Society. Peer
reviewers included U.S. Forest Service research biologists,
university professors, biologists working for private timber
industry corporations, biologists working for state fish and
wildlife agencies, and others, and included some of the most
prominent Bull Trout researchers as reflected by the current
scientific literature.
Public and peer review comments were considered and the
draft recovery plan was edited accordingly. To date, the final
recovery plan for Bull Trout has not been released.
To prepare the critical habitat proposal, a team of Fish
and Wildlife Service biologists worked with recovery team
members to describe habitat necessary to support the recovery
of those populations identified in the draft recovery plan as
essential to the survival and recovery of Bull Trout.
Again, public comment was solicited and peer review
initiated, and again peer review affiliations ranged from
Federal and state agencies to private timber companies and
academia.
Based on public and peer review input, the amount of
critical habitat proposed for Bull Trout was reduced
significantly in the draft final designation submitted by staff
biologists to Fish and Wildlife Service mangers.
An economic analysis of the effects of the critical habitat
proposal was prepared concurrently by a private contractor and
released for public comment. At the direction of the Fish and
Wildlife Service Washington office some 50 pages of this
analysis describing the potential economic benefits of Bull
Trout critical habitat designation were deleted. Therefore, the
economic analysis only described potential negative economic
effects of the proposed designation.
The economic analysis also, by policy direction, vastly
overestimated the potential negative economic effects of
critical habitat designation by including all costs incurred
pursuant to the conservation of Bull Trout since listing in
1998, and by double and triple counting costs of conservation
measures that benefit multiple species of listed fish, but were
assessed in full to each of the respective species.
Subsequent dialogue with Fish and Wildlife Service
Washington office, and the Office of the Assistant Secretary
for Fish, Wildlife and Parks resulted in numerous categories of
exclusions of areas from the Bull Trout critical habitat
designation. None of these exclusions were based on science,
and the rationale for several categories of exclusions was
either unclear or illogical.
The final critical habitat designation for Bull Trout was a
fraction of that presented to Fish and Wildlife Service
managers following public comment and peer review, and the
result was a designation of scattered patches of critical
habitat across the Pacific Northwest, not reflective of the
connected habitat representing the life history requirements of
this species.
Accordingly, the critical habitat designation is currently
being litigated by several conservation organizations.
In 2004, a five-year review of the status of Bull Trout was
initiated in response to a request from the Governor of Idaho.
For this project, a panel of experts was convened to assist
Fish and Wildlife Service biologists and managers in designing
a process for both collecting information relative to the
status of Bull Trout, and also for subsequent decisionmaking.
Panel members were chosen through a literature searching
process with the most qualified individuals were identified
based on their contributions to the scientific literature.
Panel member affiliations included the Fish and Wildlife
Service, academia, and the U.S. Geological Survey, and others.
As was the case with the draft recovery plan and the
critical habitat proposal, the draft five-year review was then
submitted for peer review by scientists from a diversity of
affiliations. The result of the review was that some
populations of Bull Trout were in an improved conservation
status since listing. Some populations were in a degradated
conservation status, and overall the populations of Bull Trout
in the United States were still appropriately listed as
threatened under the ESA.
To date, this review has not been released, and my
understanding is that the Fish and Wildlife Service intends to
begin work on a new five-year review for Bull Trout.
The intent in responding to the ESA requirements for
preparing a recovery plan, a critical habitat designation and a
five-year review was to create a transparent scientifically
based process that the public, the scientific community, and
the mangers in the Fish and Wildlife Service and the Office of
the Assistant Secretary for Fish, Wildlife and Parks could
track.
The transparent process and the scientific basis for these
initiatives are reflected in the administrative records held by
the agency, and available for public and congressional review.
The failure to finalize these initiatives consistent with a
carefully developed processes and peer reviewed scientific
information I have described has resulted in a lowering of
morale among Fish and Wildlife Service scientific staff; a
reduced respect for the work of the agency from scientific
peers, and the public; the willingness of the scientific
community to assist the Fish and Wildlife Service in such
initiatives in the future; and a tremendous waste of labor and
associated budget within the Fish and Wildlife Service.
Thank you.
[The prepared statement of Mr. Young follows:]
Statement of John A. Young, Biologist (Retired),
NOAA Fisheries and U.S. Fish and Wildlife Service
This statement is submitted by John A. Young. I was a biologist
with NOAA Fisheries and the U.S. Fish and Wildlife Service for my
entire 30-year career. My work with both agencies was relative to
implementation of the Marine Mammal Protection Act and the Endangered
Species Act (SEA). retired in 2005.
In 2002 I was selected as the first, and to date the only, Bull
Trout Coordinator for the U.S. Fish and Wildlife Service (USFWS). My
understanding is that the Pacific Region of the USFWS is currently
planning to re-fill this position after a nearly two year vacancy.
As Bull Trout Coordinator, my job was to serve as the conduit
between field staff of the USFWS. the scientific community, the public,
and the managers of the USFWS in pre-paring three documents required
under the SEA after a species is listed as threatened or endangered: a
Recovery Plan, a Critical Habitat Designation, and a 5-year review of
the species status. All of the information I am providing to you today
is reflected in the respective administrative records for these three
initiatives. The administrative records are available from the Pacific
Region of the USFWS in Portland, Oregon.
Bull Trout Recovery Plan
To prepare the Recovery Plan the USFWS established Recovery Teams
across the range of bull trout in Washington, Oregon, Nevada, Idaho and
Montana. Recovery Teams were made up of biologists and other
stakeholders representing other Federal agencies, such as the Forest
Service and Bureau of Land Management, State fish and wildlife
agencies, private timber companies, utility companies, private ranchers
and farmers, and others. The recovery plan was drafted and released for
public comment. The draft plan was also peer reviewed by fishery
biologists identified by the American Fisheries Society. Peer reviewers
included U.S. Forest Service research biologists, university
professors, biologists working for private timber industry
corporations, biologists working for State fish and wildlife agencies,
and others, and included some of the most prominent bull trout
researchers as reflected by the current scientific literature. Public
and peer review comments were considered and the draft recovery plan
was edited accordingly. To date the final recovery plan for bull trout
has not been released.
Bull Trout Critical Habitat Designation
To prepare the critical habitat proposal, a team of USFWS
biologists worked with recovery team members to describe habitat
necessary to support the recovery of those populations identified in
the draft recovery plan as essential to the survival and recovery of
bull trout. Again, public comment was solicited and peer review
initiated and, again, peer reviewer affiliations ranged from Federal
and State agencies to private timber companies and academia. Based on
public and peer review input, the amount of critical habitat proposed
for bull trout was reduced significantly in the draft final designation
submitted by staff biologists to USFWS managers.
Subsequent dialogue with the USFWS Washington Office and the Office
of the Assistant Secretary for Fish, Wildlife and Parks resulted in
numerous categories of exclusions of areas from the bull trout critical
habitat designation. None of these exclusions were based on science,
and the rationale for several categories of exclusions was either un-
clear or illogical.
For example, the entire ``action area'' of the Federal Columbia
River Power System (FCRPS) (i.e., the Federal hydro power projects on
the Columbia and Snake Rivers) was deleted from the critical habitat
designation. ``Action area'' is a term of art under the SEA and
indicates the scope of habitat that a species that is affected by
project operations occupies. So, if an adult bull trout migrates
through a dam on the mainstream Columbia River and is potentially
affected by dam operations, the ``action area'' includes the spawning
grounds high up in the watershed (sometimes a hundred miles or more
distant from the mainstream river) where the adult fish was born and
returns to reproduce. The problem with excluding these areas from a
critical habitat designation is that the operators of the FRPS--the
U.S. Army Corps of Engineers, the Bureau of Reclamation, and the
Bonneville Power Administration--only control operations on the
mainstream Columbia and Snake Rivers. These agencies have absolutely no
discretionary authority over upstream habitat occurring on private
farms and ranches, State lands, or Federal lands managed by the Forest
Service or Bureau of Land Management. While an argument might be made
that exclusion of the mainstream Snake and Columbia River areas
directly managed by the agencies operating the FRPS is appropriate,
blanket exclusion of the FFCRPS ``action area'' is completely
illogical. USFWS staff identified this category of exclusion as
inappropriate, but USFWS managers were overruled by the Office of the
Assistant Secretary for Fish, Wildlife and Parks.
Another example of an illogical, unsupportable category of
exclusion is that of all reservoirs within the range of bull trout
habitat. There are hundreds of large and small reservoirs built for
irrigation water storage, flood control, and hydro power generation in
the Pacific Northwest. Operators of these reservoirs include Federal
Agencies, private utility companies, private associations of ranchers
and farmers, and State and local governments. Operational plans for
these reservoirs are diverse, depending on their purpose. Some, but
certainly not all, of the operators of reservoirs have consulted with
the USFWS under the SEA and have accordingly considered the
conservation of bull trout when designing their annual operation plans.
Most pertinent to this discussion is that the exclusion of all
reservoirs within the scope of proposed bull trout critical habitat was
made at the direction of the Office of the Assistant Secretary for
Fish, Wildlife and Parks without an analysis of the status of
individual operational plans, any associated conservation measures, and
the effect of those plans and measures on the habitat necessary for the
continued survival and recovery of bull trout. Again, the efficacy of
this blanket exclusion was questioned at the staff level, but again
USFWS managers were directed to include this exclusion category in the
final critical habitat rule by the Office of the Assistant Secretary
for Fish, Wildlife, and Parks.
The final critical habitat designation for bull trout was a
fraction of that presented to USFWS managers following public comment
and peer review, and the result was scattered patches of habitat across
the Pacific Northwest not reflective of connected habitat. representing
the life history requirements of this species. Accordingly, the
critical habitat designation is currently being litigated by several
conservation organizations.
Bull Trout Proposed Critical Habitat Economic Analysis
An economic analysis of the effects of the critical habitat
proposal was prepared concurrently by a private contractor and released
for public comment. At the direction of the USFWS Washington Office,
50+ pages of this analysis describing the potential economic benefits
of the proposed bull trout critical habitat designation were deleted.
Therefore, the economic analysis only described potential negative
economic effects of the proposed designation.
The data presented in the Economic Analysis has also been skewed,
by policy, to over-estimate costs associated with a critical habitat
designation for bull trout. For example, fish passage facilities on the
hydro power projects in the Pacific Northwest were built long before
bull trout were listed as threatened and were designed primarily to
pass salmon and steelhead from their spawning grounds to the Pacific
Ocean and back again. These facilities are expensive to build and
maintain, and do benefit some populations of migratory bull trout, as
well as the salmon and steel head they were originally built for.
However, in the economic analysis of proposed bull trout critical
habitat the full cost of construction and operation has been attributed
as a cost relative to the bull trout critical habitat designation.
There was no attempt to pro-rate costs by species based on the degree
of benefit. More astounding is the fact that these same full costs of
construction and operation are also reflected in the NOAA Fisheries
Economic Analysis of proposed critical habitat for species of salmon
and steelhead under that agency's jurisdiction. The public, therefore,
is being intentionally misled to believe that the costs of designating
critical habitat and the general conservation of listed species of fish
in the Pacific Northwest are multiples of the actual costs incurred.
Another troubling policy currently being implemented is direction
to include all costs associated with the conservation of a species
since listing in the economic analysis of a proposed critical habitat
designation. For bull trout, which were listed in 1998, some 5 years
prior to the initiation of the critical habitat designation, the costs
include all conservation efforts implemented during this 5-year period.
This policy of including all costs within a document prepared
ostensibly to address the critical habitat proposal, and clearly titled
as relevant only 10 the critical habitat proposal, is disingenuous at
best.
Bull Trout 5-year Review
In 2004, a 5-year review of the status of bull trout was initiated
in response to a request from the Governor of Idaho. For this project,
a panel of experts was convened to assist USFWS biologists and managers
in designing a process for both collecting information relative to the
status of bull trout and also for subsequent decision-making. Panel
members were chosen through a literature searching process where the
most qualified individuals were identified, based on their
contributions to the scientific literature. Panel member affiliations
included the U.S. Forest Service, academia, the U.S. Geological Survey
and others.
As was the case with the draft Recovery Plan and proposed Critical
Habitat designation, the draft 5-year review was then subjected to peer
review by a diverse group of scientists, and the document was edited
accordingly. The result of the 5-year review was that some populations
of bull trout were in an improved conservation status since listing,
some populations were in a degraded conservation status, and overall
the populations of bull trout in the United States were still
appropriately listed as threatened under the SEA. To date, this review
has not been released, and my understanding is that the USFWS intends
to begin work on a new 5-year review for bull trout The inescapable
perception is that policy makers in the Office of the Assistant
Secretary are looking for a different result.
Summary
The intent in responding to the SEA requirements for preparing a
recovery plan, a critical habitat designation, and a 5-year review was
to create a transparent, scientifically-based process that the public,
the scientific community, and managers in the USFWS and the Office of
the Assistant Secretary for Fish, Wildlife and Parks could track. The
transparent process and the scientific basis for these initiatives are
reflected in the administrative records held by the agency and
available for public and congressional re-view. The failure to finalize
these initiatives based on the carefully developed processes and peer
reviewed scientific information I have described has resulted in a
lowering of morale among USFWS scientific staff, a reduced respect for
the work of the agency from scientific peers and the public, a reduced
willingness of the scientific community to assist the USFWS in such
initiatives in the future, and a tremendous waste of labor and
associated budget within the USFWS.
Observations on the Critical Habitat Process in General
It is clearly stipulated in the SEA that critical habitat be
designated within a year of a listing of a species as threatened or
endangered. The unwritten policy of the USFWS under both the current
administration and the preceding administration is that critical
habitat is of little value beyond the consultation requirements
associated with listing, and critical habitat development is not
initiated unless and until the agency is sued to do so. Because the SEA
is abundantly clear in this regard, the agency almost never prevails in
such litigation and is routinely directed by the court to work out a
schedule for completing critical habitat designation with the
litigants.
This unwritten policy of resisting a basic requirement of the SEA
represents poor management at its worst. If the intent is to influence
Congress to modify the requirements of the SEA, it has not been
successful. What has resulted is a pattern of reactive management where
the agency is litigated, forced to work out a schedule for completing a
critical habitat proposal where planning alternatives are limited, and
then forced to refocus existing labor and budgetary resources to meet
the mandates of the court. The court costs of successful litigants that
the agency must assume, negative publicity to the agency resulting
'from the public perception that the agency is not doing its job, and a
demoralized work force associated with this ``head buried in the sand''
management approach are the unnecessary and avoidable by products of
such poor management practices.
______
Response to questions submitted for the record by John Young
Questions from the Minority Members
1. I do not disagree with former Secretary Babbitt and former
Director Clark relative to the regulatory value of critical habitat.
The listing of a species results in regulatory protections that are not
particularly enhanced by the designation of critical habitat (except in
the rare case where unoccupied critical habitat is designated to
provide for the recovery of a species whose range has been severely
depleted). The identification of critical habitat, however, does serve
to inform and educate the public as to specific areas that are
important to the survival and recovery of listed species. Despite
agency views on the value of critical habitat, it is important for the
agency to follow the law and avoid unnecessary lawsuits and the public
perception that the agency is not interested in fulfilling its mission
to implement the ESA.
2. Yes. However, the balancing must be based on sound economic and
other considerations with supporting logic. In the case of bull trout,
many of the considerations were illogical, as I have documented in my
written testimony and which is clearly reflected within the
administrative records for the bull trout critical habitat initiative.
3. Yes. In the cases of bull trout recovery planning, critical
habitat designation, and the 5-year review we sought peer review from
expert scientists with a variety of backgrounds and affiliations to
work through any such disagreements. Scientific peer review is the
mechanism to work through any such situations where scientists
disagree.
4. Yes. However, if the policy maker has two opinions from two
scientists, it would be appropriate to seek further input from
additional peer reviewers to ensure that all facets of the scientific
disagreement have been appropriately reviewed.
5. Yes. Federal scientists must document their findings based on
the scientific literature and, where appropriate, expose those findings
to scientific peer review so that the entire basis for any conclusions
are transparent to the public, other scientists, and policy makers.
6. Yes.
7. Yes, definitely. Critical habitat is defined in the ESA as
habitat necessary to provide for the ``conservation'' of the species in
question.
``Conservation'' is defined in the ESA as those measures necessary
to provide for the survival and recovery of the species in question.
One would not expect to recover a species if the life history
requirements that have resulted in the evolution of the species over
thousands of years are ignored.
______
The Chairman. Mr. Horn.
STATEMENT OF MR. WILLIAM P. HORN, ATTORNEY,
BIRCH, HORTON, BITTNER & CHEROT
Mr. Horn. Thank you. Mr. Chairman, my name is William Horn,
and I appreciate the opportunity to appear today to discuss the
Endangered Species Act, and the interactions of policy and
science in its implementations. Let me add that my comments
arise from my prior tenure as Assistant Secretary of the
Interior for Fish, Wildlife and Parks, my present service on
the National Academy of Sciences' Environmental Board, and my
long-time representation of the U.S. Sportsmen's Alliance.
The implementation of the ESA from my perspective both as
an insider and also as an private practitioner over the last 15
plus years is always an exercise in both policy and science,
and frankly, it can't be any other way.
One incontrovertible fact is that Congress has never
provided the Department or the Service with the infinite
resources to administer the program, and as a result, program
administrators, regardless of their political stripe or their
status as political or careers, are compelled to make
unescapable policy choices regarding which species to focus on
first, which recovery programs to pursue, which listing
decisions take priority, and so long. There just simply aren't
the staff and the dollars to do everything all at the same
time. Choices need to be made.
Science plays, obviously, an important role in making those
choices, but it is my submission that only the most naive would
conclude that science always provides clear answers for every
ESA decision. For example, in Florida's Everglades, the water
management regime necessary to bring back the Cape Sable
Seaside Sparrow adversely impacts two other listed birds, the
Everglade's Kite and Wood Stork. Someone has to make a policy
decision appropriately informed by relevance science about
which water management approach should be pursued, which one of
those three species gets priority over the others because there
is no simple way to pick something that takes care of all three
simultaneously.
Now, these types of limitations became very evident to me
on an issue that showed up on my desk in 1986. At that time
only seven California Condors remained in the wild and they
were dying regularly. Half of the condor recovery team argued
that the remaining birds needed to be captured, and to be made
part of a captive breeding program then untested. The other
half of the recovery team were adamant that captive breeding
was scientifically unproven. The birds should be allowed to
remain in the wild, and even to die with dignity in the wild,
as one member put it.
Ultimately, I made a policy decision to try the unproven
science, capture the remaining birds, and embark on a breeding
program, an effort that was delayed while we were sued by
environmental plaintiffs who argued that that decision was
contrary to accepted science.
Now, as the Committee may know, the captive breeding
program turned out to be an enormous success, and had we waited
for some kind of scientific consensus to arise from the
battling members of the recovery team or we had accepted the
environmentalists view of good science at that time, wild
condors would likely be extinct today.
Now, the obvious thesis of this hearing is that this
administration is somehow singularly responsible for making a
variety of ESA decisions to not list in contravention of
scientific information.
We would submit that a proposed listing, earlier related,
represents another example of an environmental gesture
triumphing over science, and that concerns the proposed listing
of Polar Bears. And although the bear populations are at
historic highs throughout the Arctic, and Canada successfully
manages these populations, the Service is no proposing to list
all Polar Bears as threatened based on one disputed model that
predicts major shrinkage of sea ice in 45 years.
The U.S. sporting community, Canada, the Alaska Department
of Fish and Game and others have reacted strongly, contending
that the science does not support the conjecture contained in
this one model. We believe that good science would acknowledge
that the bears had previously survived at least two major
climate warming periods. Good science would recognize the
present overall health of the bears. Good science would also
recognize the present sport hunting programs, which Canada
administers, which provide important funding would be cut off
and terminated if the listing proceeds. Unfortunately, instead
of good science, we see an environmental gesture in this
particular case.
Let me just conclude by noting that any attempt to run this
program on pure science is divorced from reality. There is no
pure science in many circumstances because the answers aren't
clear or they are clearly provisional. The scientists disagree,
often strongly, and predictive models usually are even more at
odds.
With such uncertainties inherent in wildlife management
necessitate policy judgments by responsible and accountable
officials, and someone ultimately other than the dueling
scientists has to make calls on whether or not to capture the
condors or choose the appropriate Everglades water flow regime
to benefit the sparrow, storks, or the kites. That type of
balance in this system just cannot be escaped and should be
recognized by all of those who take this program seriously, and
care deeply about all of the species that it seeks to protect.
Thank you.
[The prepared statement of Mr. Horn follows:]
Statement of William P. Horn, on behalf of the
U.S. Sportsmen's Alliance
Mr. Chairman: My name is William P. Horn and I appreciate the
opportunity to appear before the Committee to discuss implementation of
the Endangered Species Act (ESA) and how matters of policy and science
interact. These comments arise from my tenure as Assistant Secretary of
the Interior for Fish, Wildlife and Parks from 1985-1988, my present
service on the National Academy of Sciences Board on Environmental
Science and Toxicology, and my long term representation of the U.S.
Sportsmen's Alliance and its interests in wildlife conservation,
scientific management of wildlife, and related ESA issues.
Implementation of the ESA is an exercise in both policy and
science. It cannot be any other way. One incontrovertible fact is that
Congress has never provided the responsible agency--the Department of
the Interior and its U.S. Fish and Wildlife Service (FWS)--with
infinite resources to administer the program. As a result, program
administrators are compelled to make choices regarding which species to
focus on, which recovery programs to pursue, which listing decisions
take priority, etc. These unescapable choices--that have afflicted
every Administration, Democrat or Republican, since 1973--require
policy decisions and it goes without saying that policy choices are
political choices.
Science plays an important role in making these choices but only
the most naive would conclude that science provides clear answers, and
clear policy choices, for every ESA decision. For example, in Florida's
Everglades the water management regime to benefit the Cape Sable
Seaside Sparrow adversely impacts other listed species such as the
Everglades Kite and the Wood Stork. The scientists who constitute the
recovery team for each species are making focused judgments, and
recommendations, designed to benefit ``their'' species even if it means
hindering the conservation or recovery of the other species. Someone
has to make a policy decision, appropriately informed by relevant
scientific data, about which water management approach should be
pursued and that someone is usually a senior policy maker (i.e., a
political appointee) and not a biologist in his or her white lab coat
The limitations of ``science'' were very evident in one major issue
that arrived on my desk during my term as Assistant Secretary. In the
late 1980's, only seven California Condors remained in the wild
following a series of deaths from power line collisions and unknown
causes. One half of the condor recovery team scientists argued that the
remaining birds needed to be captured and become part of a captive
breeding program. The other half were adamant that captive breeding was
scientifically unproven, the birds should be allowed to ``die with
dignity'' in the wild. Ultimately, I made a policy decision to try the
unproven science, capture the remaining birds, and embark on the
breeding program--an effort that was delayed while the Department was
sued by a group of environmentalist plaintiffs which opted for the
``die with dignity'' approach. As the Committee may know, the captive
breeding program turned out to be a great success and today
approximately five dozen condors in at least two separate populations
exist in the wild. Had we waited for some kind of consensus to arise
from the battling scientists, wild condors would likely be extinct.
In the same time frame, FWS received from a group of Stanford
University professors a petition to list a purported subspecies of Bay
Checkerspot butterflies. However, the lepidopterist taxonomists were
hopelessly divided over whether or not the butterflies were a bona fide
subspecies. That was the crucial issue as if they were a subspecies,
they would be eligible to be listed and if not, there were sufficient
numbers of this species elsewhere that listing would not be warranted.
Ultimately, I made a policy decision to list the butterfly by siding
with those taxonomists claiming it was a subspecies.
This happens to be one area where there is no ``pure'' science to
help resolve disputes. The taxonomy community is famous for being
divided between ``lumpers'' and ``splitters.'' The former take a dim
view of subspeciation and are much inclined to group things at the
species level. In contrast, the latter leans toward dividing (i.e.,
splitting) species into smaller and smaller subspecies. For ESA
purposes, this is important since ``subspecies'' are eligible for
listing and the taxonomic determination, as in the butterfly case,
drives the listing decision. A policy maker (i.e., a political
appointee) who, in effect, puts the splitters in charge will end up
listing many more subspecies compared to a policy maker who puts
lumpers in charge of speciation determinations. Both sides of the
taxonomic community can claim the mantle of good science, yet a policy
maker who goes with one side will surely be criticized by the other for
departing from good science.
A fundamental problem with the present ESA is that it does not
allow for enough policy judgments. For example, the statute provides
for the listing of six different types of ``species'': at one end are
``endangered species'' and at the other end ``threatened distinct
population segments.'' It was always my policy judgment that more
attention--and finite resources--needed to be directed toward
``endangered species'' as these ``species'' are on the brink of
extinction. On the other hand, a ``threatened distinct population
segment'' means that only this limited segment is in serious trouble
and that the species, or subspecies, as a whole is likely doing
alright. The Act clearly contemplated allowing Interior and FWS to make
these kinds of distinctions, especially between ``endangered'' and
``threatened'' species, but court rulings over the years have largely
erased this intended and needed flexibility.
The sloppy language of the Act has been construed by courts to
create a situation where, in essence, every listed species must be
recovered regardless of cost or consequence. Of course, without
infinite resources, the agency lacks the ability to do everything it is
supposed to do under the Act: review species, list species, engage in
consultation with other federal agencies, issue biological opinions,
conserve species, recover species, fulfill the international side of
the program, and enforce the taking proscriptions. When senior policy
makers attempt to make needed choices, informed by scientific
information, to establish priorities and decide which endangered
species, endangered subspecies, endangered population segment,
threatened species, threatened subspecies, or threatened population
segment requires attention over another, litigation is almost automatic
from those adherents of the species given second or third priority. A
federal court then commandeers the program and directs the commitment
of finite staff and monetary resources until the next court moves a
different species to the head of the list. No application of
``science'' in a policy/political vacuum is going to solve these
inherent problems with the ESA.
Repeated judicial intervention has also been a bane of the program
and many of the rulings have little to do with science but a lot to do
with the badly written Act. Please note that this trend is hardly
recent. During Secretary Bruce Babbitt's tenure at Interior, during the
Clinton Administration, the Department and FWS were the target of
incessant ESA lawsuits--mostly from the ``environmental'' side. Career
staff complained repeatedly about how ESA program resources were being
commandeered by the courts and how difficult it was to administer the
program amid a welter of often conflicting judicial edits.
A more recent example of judicial overreach is the lynx. Every
wildlife biologist knows that lynx populations are tied inextricably to
their primary prey species--snowshoe hares. In addition, the lynx is a
northern species primarily occupying habitats in Alaska and Canada
where populations are unendangered and unthreatened. In contrast, lynx
populations in the northern tier of the Lower 48 states cycle up and
down with the relative abundance of hares. When the lynx population
shrinks, as it always does in this natural cycle, it contracts and lynx
numbers in states such as Maine or Minnesota drop. The FWS, aware of
this cycle, declined to list as endangered or threatened the naturally
marginal lynx POPULATION SEGMENTS in the Lower 48. This science-based
decision was rejected by a U.S. District Court in D.C., based on the
sloppily written ESA, and now these lynx are listed as a threatened
distinct population segment. Of course, listing won't do much for lynx
abundance in these states since no Act of Congress or federal court can
keep snowshoe hares at perpetually high levels. If the Committee is
serious about ensuring a primary role for science in ESA
decisionmaking, it should amend the Act to ensure greater judicial
deference to the expert determinations of the FWS.
We all have a front row seat to the next case of the courts v.
science. In Yellowstone, the previously threatened distinct population
segment of grizzly bears has reached numbers substantially greater than
the recovery goal set 20 years ago in its recovery plan. Indeed, it's
safe to say that this population of bears recovered years ago, and
should have been delisted then, but the agency is genuinely fearful of
political fallout from delisting and judicial intervention. The ``usual
suspects'' have announced their intention to challenge in court, this
completely warranted and scientifically established delisting, and it
will be interesting to see if science (and FWS) prevail over those
interests with an apparently vested interest in keeping the recovered
bears on the ESA list.
The obvious thesis of this hearing is that the Bush Administration
is singularly responsible for making ESA policy decisions, such as
listings, in contravention of scientific information. A pending
proposed listing, however, represents the triumph of politics--and
gesture making--over science. Polar bear populations are at historic
highs throughout the Arctic and Canada so successfully manages six (of
the 19) populations that they sustain both subsistence and sport
hunting. Similarly effective management in Canada, by FWS in Alaska,
and in other countries has led FWS to conclude that no present hunting,
habitat alteration, etc. are causing adverse impacts on these
populations. Nonetheless, in response to a lawsuit filed in California,
FWS is now proposing to list all polar bears as threatened under ESA
based on one disputed model that predicts shrinking sea ice in 45
years.
Canada and the Alaska Department of Fish and Game, among others,
have reacted strongly to this proposal contending that the science does
not support the conjecture enshrined in this one model. Good science
would recognize that there are many climate change sea-ice models, some
of which predict differing levels of nearshore and multi-year sea ice
during summer months from 40 to 100 years from now. Good science would
acknowledge that polar bears have previously survived at least two
major climate warming periods (centuries before humans loosed carbon
dioxide into the atmosphere). Good science would recognize that
changing sea-ice conditions will benefit some seal species that serve
as prey for the bears. Good science would note that present studies
indicate that polar bear survival may be more dependent on certain snow
conditions for denning rather than sea-ice conditions. Good science
would recognize the overall health of polar bear populations. Good
science would also recognize that if any bear population segments
deserved listing, it would be the two or three populations for which
little information is available so no one knows conclusively if these
populations are indeed threatened.
Unfortunately, instead of good science, we see a political gesture.
We understand the desire of some interest groups to turn the polar bear
into their poster child for ``global warming.'' We're bitterly
disappointed that the Interior Department, so far, has bought into this
kind of gesture-making and is trumping good science and conservation.
In fact, listing would hurt bear conservation efforts by barring U.S.
citizens from participating in the Canadian sport hunting program and
cut off a primary source of funding for important conservation and
scientific management programs.
Let me conclude by noting that any attempt to rely on ``pure
science'' to run the ESA program is divorced from reality. There is no
``pure science'' as in many instances answers aren't clear or are
completely provisional. Scientists disagree, often strongly, and
predictive models are usually more at odds. Such uncertainties,
inherent in wildlife management, necessitate policy judgments by
responsible and accountable officials. Someone other than dueling or
competing scientists have to make the calls on whether or not to
capture the condors or choose an Everglades water flow regime to
benefit the sparrows, the storks, or the kites. Fundamentally the
availability of only finite staff and funding resources--per Congress--
mandate that policy choices be made. Priorities have to be set because
all elements, and all species, cannot be treated equally despite what
the law may provide. Those too are policy decisions--not science. Under
these immutable circumstances it would be naive, at best, and
counterproductive to try to administer the ESA program on the basis of
a myth--``pure science.''
______
Response to questions submitted for the record by William P. Horn
1. I cannot recall a listing of an otherwise healthy species of
fish or wildlife based solely on a single model that predicts
population declines over a 45 year or greater time span. There have
been instances where a species was in some difficulty (e.g., spotted
owls) and population models predicted a further decline in overall
numbers. The approach underlying the present proposed listing of all
polar bears is unprecedented since the worldwide population of the
bears is at or above record highs. Please note that if a presently
healthy population can, or must, be listed based solely on one model
that projects problems 45 years or further into the future, many
otherwise presently healthy species will become eligible for listing
now.
2. There are dozens of listings of distinct population segments
(DPS's) as endangered or threatened species. Some of the highest
profile species are DPS's, including Yellowstone grizzly bears, lynx in
the Lower 48 states, and numerous salmon runs on the West Coast. In
these cases, the overall species is healthy (e.g., there are tens of
thousands of grizzly bears in Alaska and Canada) but a specific
population segment is determined to be in jeopardy.
3. The Act includes an effective hierarchy with endangered species
on top and threatened distinct population segments at the bottom.
Clearly, limited resources ought to be focused on endangered species--
facing extinction--rather than on population segments of otherwise
healthy species especially when those segments are only ``threatened.''
4. The proposed listing of the polar bear is a major mistake on
many levels. First, the listing will terminate the single most
effective polar bear conservation program--the sport hunting program
administered in Canada that generates hundreds of thousands of dollars
of revenue to fund tangible, on-the-ground conservation and management
activities. Second, the bear MIGHT be in trouble 45 years from now IF
the one model regarding sea ice shrinkage turns out to be correct. It
strikes me as foolish to expend finite resources now, as the result of
a listing, on the presently healthy polar bears rather than direct
those resources at genuinely endangered species. Third, listing the
bears based on a 45 year projection will set a precedent that will
likely compel the listing of many Arctic species that are otherwise
presently healthy. This would further skew the allocation of limited
resources away from presently endangered species.
5. We regard the listing of the polar bear as an environmental
gesture--a bald faced effort to make the bear the ``poster child'' for
global warming doomsayers. There is nothing in the ESA that empowers
the Secretary of the Interior to begin to regulate CO2
emissions within the U.S. or in the world (i.e., China or India) so the
listing will do little or nothing to address the purported root cause
of Arctic sea ice shrinkage--excessive CO2 output into the
atmosphere. In addition, there is nothing in the legislative history of
the ESA indicating Congress ever contemplated or intended the ESA to be
used to regulate human activity on such a broad scale.
6. Listing all polar bears as threatened, as presently proposed,
would not provide the Fish and Wildlife Service any authority to
protect or conserve polar bear habitat in Canada or any other foreign
country. Since only two of the 19 bear populations are found within the
U.S. (Alaska), the listing is really only a gesture since the listing
would not empower FWS to do much of anything to beneficially impact
conservation of the other 17 bear populations.
7. A variety of environmentalist interests challenged my decision
to capture the remaining wild California Condors in the mid-1980's and
embark on the ultimately successful captive breeding program to save
the species from extinction. The Department and FWS were initially
enjoined from conducting the capture program by U.S. District Court in
Washington, D.C. as a result of the environmentalist lawsuit
challenging the capture/captive breeding decision. Most of the
arguments against the decision claimed that there was insufficient
scientific justification to embark on the captive breeding effort and
that once the birds were captured, they would never be returned to the
wild. This led to one of the plaintiffs commenting that it was
preferable to have the condors ``die with dignity'' in the wild rather
than be captured for the then unproven captive breeding program.
Ultimately, the courts upheld the Department's decision and the
capture/breeding program proceeded--and succeeded.
It is likely that such arguments would be used again today.
Unfortunately, there are many interests whose primary interest is using
the ESA to impose land use controls and other restraints on human
activity rather than focus on bona fide wildlife conservation and
species recovery. Keeping species in the wild, even at the risk of
extinction, advances this regulatory agenda. Moreover, other interests
will fight to maintain a listing for these same reasons even though
sound scientific data demonstrates that a listed species has recovered
and warrants delisting.
8. Federal employees, including scientists, retain their First
Amendment rights. Furthermore, agency scientists have an obligation to
provide the best data and scientific judgments--consistent with
applicable law--to senior policy makers. However, there is often no
bright line between a scientific dispute and a policy issue. Our system
recognizes that the elected President and his executive branch team
make the policy decisions. Career personnel have an obligation to
adhere to those policy judgments. If career personnel want to make
independent policy (and contradict Presidential appointees and others
confirmed by the Senate), they need to give up their protected civil
service status and enter the political arena.
9. Clearly there must be interaction between research and
management for both to be effective and serve the public interest. It's
clear though that management decisions usually fall in the policy realm
where accountable political appointees hold sway. Accordingly, it is
well established that much research is asked for to enable an agency to
deal with pressing management issues. Smart managers, though, realize
that they should ask the researchers where research is needed and where
it will ultimately help an agency discharge its duties under applicable
law including the ESA.
______
The Chairman. Thank you very much. I appreciate your
testimony and patience in being with us all morning and into
the afternoon.
Let me ask you, Ms. Rodd, the first question, if I might.
Could you please explain the flaws and the serious concerns
that you have with the process at the Fish and Wildlife Service
has undertaken to de-list the squirrel?
Ms. Rodd. Certainly. Thank you for the opportunity.
We are very concerned because in this case the recovery
plan has been thrown out as a standard by which the recovery is
being measured. The squirrel is--we are told that the squirrel
population is persistent. We are told that the habitat is
protected and the threats are going down.
The recovery plan sets up a way to measure these things.
You measure a basic population. You look at trends over 10
years. No measures of population have been made. The agency
itself admits they have no understanding of what the population
is.
So they have turned to this strange term ``persistence'',
which means once in a while a squirrel pops up, and that is
their science for going all the way from endangered to no
protection at all. The habitat that they have described is not
an agreement with all the major scientific papers. They
describe the squirrel as being totally dependent on a Red
Spruce habitat, when in fact it uses both Red Spruce and
Northern Hardwoods. And so when they say, well, we will protect
Red Spruce, they are losing half the habitat. This
misdefinition of habitat could be fatal to the squirrel.
Third, they talk about threats decreasing, and in that case
they say, we are protecting the squirrel on the Monongahela
National Forest, and there won't be any logging under the new
forest plan. But reading the details of the new forest plan
logging is allowed in all the habitats where the squirrel
exists. It is allowed in Red Spruce habitat which they have
singled out for protection, but they still are allowing
logging. It is allowed in the Northern Hardwood habitat, and it
is allowed in Hemlock, which is another place where the
squirrel is found. So it is not being protected from logging.
It is not being protected from road building. They claim
that flying squirrels have the ability to slide 140 feet and
therefore could cross a four-lane highway and be fine. This is
absurd. They base this on one study, one letter, anecdotal
instance of a squirrel crossing a power line, and they compare
that to a four-lane highway.
They also would, in order for the squirrel to glide the 140
feet, you would have to plant 200 feet trees along the edge of
any highway to allow them to get that amount of glide going.
We also find a flaw in their numbers. They are saying that
1,147 squirrels have been found over 21 years, and that is
enough to say the squirrel is fine. We looked at the original
field notes for everyone of those captures, and we are able to
confidently claim that they have only caught 654 squirrels in
21 years. That is 30 a year. They didn't even go back and look
at the basic research to see what was there.
We are very upset with the shoddy science being done here,
and we are upset that the recovery plan is being thrown out,
which apparently, I am surprised to learn, is happening all
over the place. We are part of a national trend. We don't like
it.
The Chairman. So what would be your recommendations for
correcting these faults?
Ms. Rodd. We would like a Blue Ribbon scientific panel to
be convened on this rule, proposed rule, to review the science
and come up with a recommendation. We would like this panel to
consist of independent scientists, scientists that are not part
of the agency, either Fish and Wildlife or the Forest Service.
That is what we would recommend.
The Chairman. OK. Mr. Young, let me ask you, as a former
employee at Fish and Wildlife you have perspectives certainly
that none of us have, and I have a question regarding the role
that science and peer review have in ESA decisions.
If the work that scientists provide that Fish and Wildlife
Service has ignored, as we understand happened with the Bull
Trout, what incentive is there for outside scientists to devote
time to peer reviewing ESA decisions?
Mr. Young. Well, that is a good question, Mr. Chairman, and
I am sorry Congressman Inslee is not here because my response
reflects some of his constituents, I believe.
The Chairman. We will share your responses.
Mr. Young. Little incentive. For instance, when the
critical habitat designation came out as it did come out, our
partners in Washington Department of Fish and Wildlife, several
of our partners there who were members of recovery teams and
participated in the critical habitat process, and participated
as peer reviewers as well, were incensed and basically
expressed outrage and I am sure it was just a knee-jerk
reaction, but at least initially said don't come back and ask
us for any help again because you are just wasting our time.
It is disingenuous to ask a peer reviewer who has a career,
or a group of peer reviewers, they have careers, they have
their own duties to do, to devote time to reviewing hundreds of
pages of documents sometimes, providing helpful guidance with
their expertise, and then to see the final result that reflects
none of their input. So it is damaging to the agency in that
regard, I believe.
The Chairman. What guidelines or what documents, rather,
are available to guide Fish and Wildlife employees when it
comes to making critical habitat designations?
For example, how do they know what is to be included in an
economic impact analysis?
Mr. Young. Well, the economic impact analysis is done by
private contractors, so they are guided by the Washington
office, and there is a staff member in the Washington office
who is an economist, the sole economist, as I understand, in
the U.S. Fish and Wildlife Service. Of course, that person
doesn't make the policy that guides these contractors. That is
done by others in the Department.
So I can't really respond beyond that. You know, there are
people who provide guidance through the economist in Fish and
Wildlife Service.
The Chairman. OK. Are the peer reviewers paid?
Mr. Young. Peer reviewers are not paid.
The Chairman. They are not paid.
Mr. Young. No. No, they are voluntary, and you know, as the
Bull Trout coordinator I worked hard to develop relationships
with these people, and with these agencies so that they would
take the time, and their supervisors would allow them to take
the time to help us with peer review, and in the case of the
five-year review of the panel that guided the whole five-year
review process. In that case, even our regional director, it
appeared to me, was so nervous about making a decision that he
wanted an outside panel to guide the process that led to the
decision to be totally transparent in the record.
The Chairman. OK. We thank you for your testimony today.
Appreciate it very much.
The Committee will stand adjourned.
[Whereupon, at 2:48 p.m. the Committee was adjourned.]
[Additional material submitted for the record follows:]
[A letter from Gail S. Olson, Ph.D., submitted for the
record by The Honorable Jay Inslee follows:]
May 16, 2007
The Honorable Jay Inslee
U.S. House of Representatives
Washington, D.C.
Dear Congressman Inslee:
I am a wildlife biologist who has conducted research on the
relationships between Northern Spotted Owls and their habitat for the
past 8 years. I (along with 6 co-authors) published a paper on some of
the results of that research in the Journal of Wildlife Management in
2004 and it has been cited several times in the draft Northern Spotted
Owl Recovery Plan. Specifically, results published in my paper have
been used to support the habitat provisions for both Options 1 and 2 in
the Plan. I strongly believe this to be at least a misinterpretation of
my research results and at worst deliberate misuse.
One of the key findings described in the paper was that a mixture
of older forest and young or non-forest was positively associated with
owl survival and reproductive output within one study area in the
Oregon Coast Range. We anticipated the temptation to use this
information to write habitat prescriptions when we discussed the
``Management Implications'' of the research. On p. 1052 of Olson et al.
(2004), we stated: ``...we do not recommend that forest managers use
our modeling results as a prescription for managing habitat either
within the Oregon Coast Range or elsewhere...''. This statement is
alluded to within the Recovery Plan (p. 36) and the claim is made that
these results were used only to establish de-listing guidelines and not
to set management prescriptions. However, it is difficult to imagine
that delisting criteria and habitat prescriptions can be completely de-
linked, and the rest of the Plan as written does not appear to separate
the two concepts.
Therefore, I believe it is reasonable to assume that my research
results were used to set habitat provisions in the Plan. Therefore, I
believe it is important to reiterate the reasons why we made that
statement in the paper.
1. The amount of variation explained by the models is low. That
means that the habitat variables that we examined are not strong
predictors of owl population parameters (survival and reproductive
output). Many other factors likely have an influence, including habitat
components not examined in this study.
2. The habitat variables we used in the study were assessed by
transcribing aerial photography images. Errors in this process may
misrepresent the amounts of certain habitat types.
3. Our results may reflect unique conditions within our study area
and may not be representative of other areas. Replication of this study
in other areas is necessary to determine whether our results were
typical or anomalous.
In addition to these general caveats, I've identified at least 5
key areas where the results of my research were misapplied within the
Plan.
1. Definition of owl habitat. The habitat variables used in our
analyses were not the same as those that will be used in measuring
``habitat-capable'' acres in the provisions within the Plan. Although
there may be some overlap in the definitions, no effort was made to
determine what this overlap is. Therefore, specific values from my
research may translate to entirely different values of the habitat
definitions used in the Plan.
2. Scope of analyses and scale of measurement. Our research was
conducted within a study area known to be historically inhabited by
spotted owls. The aim of our study was to see if we could determine
differences in owl demographic performance within this area based on
the habitat in the area immediately surrounding owl nest trees and
activity centers (owl territories). Thus our study only assessed
habitat at a relatively small scale and not across entire landscapes.
To infer that the same pattern of habitat found within 1500m of owl
territory centers can be applied to landscapes as a whole requires
additional assumptions that are certainly not supported by my research
and also is contrary to what most ecologists believe about the
importance of scale in studying wildlife-habitat relationships.
3. Misinterpretation of habitat fitness potential. The Plan bases
much of its support for the habitat provisions on a measure called
``habitat fitness potential'', which was developed by Franklin et al
(2000) as a means of combining the affects of habitat on owl survival
and productivity into a single measurement. Because they used a common
population modeling method based on a projection matrix, they used the
symbol lh as short-hand notation to represent habitat
fitness potential. This likely has led to confusion and the assumption
that this measurement can be equated to the more widely used l which is
a population projection measure used to measure population trends in
northern spotted owls (c.f. Anthony et al. 2006). In general, values of
l indicate whether a population is increasing (l>1.0), decreasing
(l<1.0), or stable (l=1.0). However, values of lh cannot be
similarly interpreted because they are based on animals already
recruited into the population. They are also idealized values based on
the assumption that the models used to estimate the survival and
reproductive output parameters used to calculate habitat fitness
potential are accurate. They are NOT based on direct analyses of the
data collected from spotted owls within those individual territories.
4. Appendix D. The most obvious example of poor use of science in
the Plan is found in Appendix D, which purports to describe what
habitat fitness potential is and it does nothing of the sort. First,
there is no information on how habitat fitness potential is calculated,
which is necessary for any understanding of what it is. Second, the
analyses presented to determine the province-specific habitat threshold
values are completely ad hoc. The ``limited data set'' attributed to
the Olson et al. (2004) paper consisted of 6 data points where were
intended as visual examples only, and no data were provided on specific
habitat values within the paper. Thus they were estimated from a figure
(Figure 5) that was never intended to be used in such a way. The graph
in Figure D.2. is not of the true relationship between lh
and the habitat variable, which can be calculated directly because
lh was computed based on a formula containing habitat
values. Even the analysis based on Figure D.3., which is supposedly
taken directly from the Olson et al (2004) Figure 2 is incorrect in
that it does not accurately estimate the maximum value, which is known.
In general, none of the analyses in Appendix D that relate to Olson et
al. (2004) were necessary or appropriate.
5. Lack of uncertainty measures. It is a major tenet of modern
scientific analyses that the uncertainty of estimates be reported so
that the results can be properly interpreted. Estimates are commonly
given with confidence intervals or other measures of variance. The Plan
repeatedly ignores such uncertainty and does not consider how such
uncertainty may affect the recommendations of the Plan.
In summary, my general impression with respect to the use of my
research is that the Recovery Team lacked an understanding of the
methodologies used and deliberately ignored warnings against using it
to write management prescriptions. I was never asked to answer
questions regarding either the methodology nor the recommendations,
which further leads me to believe that clarity on these issues was not
desired. I hope this letter provides some of this clarity and sets the
record straight on what can and cannot be inferred from my research.
Sincerely,
Gail S. Olson, Ph.D.
[Northern Spotted Owl Recovery Plan Options, October 18,
2006, submitted for the record by The Honorable Jay Inslee
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]