[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
THE DANGER OF DECEPTION:
DO ENDANGERED SPECIES
HAVE A CHANCE?
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
Wednesday, May 21, 2008
__________
Serial No. 110-72
__________
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 Chris Cannon, Utah
Frank Pallone, Jr., New Jersey Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin Jeff Flake, Arizona
Islands Stevan Pearce, New Mexico
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam Cathy McMorris Rodgers, Washington
Jim Costa, California Louie Gohmert, Texas
Dan Boren, Oklahoma Tom Cole, Oklahoma
John P. Sarbanes, Maryland Rob Bishop, Utah
George Miller, California Bill Shuster, Pennsylvania
Edward J. Markey, Massachusetts Bill Sali, Idaho
Peter A. DeFazio, Oregon Doug Lamborn, Colorado
Maurice D. Hinchey, New York Mary Fallin, Oklahoma
Patrick J. Kennedy, Rhode Island Adrian Smith, Nebraska
Ron Kind, Wisconsin Robert J. Wittman, Virginia
Lois Capps, California Steve Scalise, Louisiana
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
Rick Healy, Chief Counsel
Christopher N. Fluhr, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Wednesday, May 21, 2008.......................... 1
Statement of Members:
DeFazio, Hon. Peter A., a Representative in Congress from the
State of Oregon............................................ 5
Inslee, Hon. Jay, a Representative in Congress from the State
of Washington.............................................. 6
Lamborn, Hon. Doug, a Representative in Congress from the
State of Colorado, Statement submitted for the record...... 7
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 1
Prepared statement of.................................... 2
Smith, Hon. Adrian, a Representative in Congress from the
State of Nebraska.......................................... 3
Statement of Witnesses:
Black, Scott Hoffman, Ecologist/Entomologist, Executive
Director, The Xerces Society for Invertebrate Conservation. 147
Prepared statement of.................................... 148
Franklin, Dr. Jerry F., Ph.D., College of Forest Resources,
University of Washington................................... 118
Prepared statement of.................................... 120
Grifo, Dr. Francesca T., Ph.D., Senior Scientist and
Director, Scientific Integrity Program, Union of Concerned
Scientists................................................. 123
Prepared statement of.................................... 125
Irwin, Larry L., Ph.D., Principal Scientist, National Council
for Air and Stream Improvement, Inc........................ 165
Prepared statement of.................................... 166
Response to questions submitted for the record........... 175
Kraus, Scott D., Ph.D., Vice President of Research, New
England Aquarium........................................... 109
Prepared statement of.................................... 111
Laverty, R. Lyle, Assistant Secretary for Fish and Wildlife
and Parks, U.S. Department of the Interior................. 46
Prepared statement of.................................... 47
Response to questions submitted for the record........... 50
Luxton, Jane, General Counsel, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce.... 66
Prepared statement of.................................... 67
Response to questions submitted for the record........... 69
Nazzaro, Robin M., Director, Natural Resources and
Environment, U.S. Government Accountability Office......... 7
Prepared statement of.................................... 9
Parsons, David R., Carnivore Conservation Biologist/Science
Fellow, The Rewilding Institute............................ 156
Prepared statement of.................................... 157
Shepard, Ed, Bureau of Land Management, U.S. Department of
the Interior, Response to questions submitted for the
record..................................................... 65
Additional materials supplied:
MacDonald, Julie A., MacDonald Consulting, Letter submitted
for the record............................................. 73
Manson, Craig, Former Assistant Secretary for Fish and
Wildlife and Parks, U.S. Department of the Interior, Letter
submitted for the record................................... 189
Robertson, Doug, Commissioner, Douglas County, Oregon,
Statement submitted for the record......................... 191
List of documents retained in the Committee's official files. 195
OVERSIGHT HEARING ON ``THE DANGER OF DECEPTION: DO ENDANGERED SPECIES
HAVE A CHANCE?''
----------
Wednesday, May 21, 2008
U.S. House of Representatives
Subcommittee on National Parks, Forests and Public Lands
Committee on Natural Resources
Washington, D.C.
----------
The Committee met, pursuant to call, at 10:06 a.m. in Room
1324, Longworth House Office Building, Hon. Nick J. Rahall, II
[Chairman of the Committee] presiding.
Present: Representatives Rahall, Smith, Grijalva, Sarbanes,
DeFazio, Scalise, Inslee, Baca, Duncan, Gohmert, Wittman,
Young, Bordallo, Napolitano, Costa and Holt.
STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF WEST VIRGINIA
The Chairman. The Committee is meeting today to continue
our strong oversight hearings on the implementation of the
Endangered Species Act.
One year ago, we convened to examine the mess created by
former Deputy Assistant Secretary for Fish, Wildlife and Parks,
Julie MacDonald. At the time, I, along with many Members of
this Committee, had high hopes that the Interior Department
would take a serious look at how that poorly-placed political
appointee was allowed to tinker with the work of Agency
scientists to the detriment of the Endangered Species Program.
As a result of that hearing, the Agency undertook a review
of the decisions that fell under MacDonald's purview and
pledged to work to correct any wrongdoing it uncovered. That
was a good thing. Now, one year later, after MacDonald's
demise, we find that instead of cleaning up its mess, the
Agency has merely swept it under the rug.
Today, much to my chagrin, we are about to hear that the
Agency's well-published post MacDonald review, ostensibly
designed to correct listing and critical habitat decisions,
decisions tainted by politics, was a boondoggle. It is fixing
nothing. It was too narrow, too fast and too sloppy.
Among other things, our Government Accountability Office
witness today will tell us that Agency reviewers automatically
discounted from scrutiny any decisions that could not be
directly linked to tampering by Ms. MacDonald, yet her
fingerprints may have been all over countless decisions that
were given automatic immunity from the Fish and Wildlife
Service's review. Among them were decisions that scientists
crafted not based purely on the science, but rather according
to what they anticipated might gain Julie MacDonald's political
seal of approval.
Worse still, GAO now reveals to us that there are other
Interior officials who influenced ESA decisions, and those
folks are still roaming the halls of the Interior Department
unchecked. As a result, we can have no confidence that
political tinkering with the ESA program is being addressed any
better now than it was under MacDonald's reign.
Today, we will also hear testimony about the untenable
delay of a rule designed to protect the severely depleted North
Atlantic right whale from ship strikes, the latest public
example of covert White House interference with endangered
species. It has become abundantly clear that this
Administration does not give one whit about the ESA.
The strong-arming of Federal scientists, the slow walking
of listing decisions, and the stonewalling of new rules has
convinced me that every attempt to fix the management of the
Endangered Species Program under this Administration is a lost
cause. No matter how deeply this Committee looks or how hard we
push to conduct real, valid oversight, we are hamstrung by
secrecy and by deception.
For example, I, along with Representatives Peter DeFazio
and Jay Inslee, requested documents relating to the northern
spotted owl, but of the boxes of documents sent to us in
response to that request, we find barely any mention of the
names of Agriculture Secretary Mark Ray, Deputy Under Secretary
of Agriculture Dave Tenney, or Interior Deputy Secretary Lynn
Scarlett, who all served on the ``Washington Oversight
Committee''.
Though it may be a bad pun, my true reaction is something
smells fishy here. As Chairman of this Committee and as one who
undertakes oversight responsibility seriously, I am forced to
conclude that not only has the Endangered Species program been
sorely politicized, but effort after effort supposedly designed
to correct the mishandling of the program by this
Administration and this Agency has also been badly bungled.
At this point, in my opinion, the best hope for endangered
species may simply be to cling to life until after next
January, when this President and his cronies at long last will
be on the unemployment lines.
With that, I conclude my testimony and yield to the Ranking
Minority Member.
[The prepared statement of Chairman Rahall follows:]
Statement of The Honorable Nick J. Rahall, II, Chairman,
Committee on Natural Resources
One year ago, this Committee convened to examine the mess created
by former Deputy Assistant Secretary for Fish, Wildlife and Parks Julie
MacDonald. At the time, I had high hopes that the Interior Department
would take a serious look at how that poorly placed political appointee
was allowed to tinker with the work of agency scientists to the
detriment of the Endangered Species program.
As a result of that hearing, the agency undertook a review of the
decisions that fell under MacDonald's purview and pledged to work to
correct any wrongdoing it uncovered.
Now, one year after MacDonald's demise, we find that instead of
cleaning up its mess, the agency has merely swept it under a rug.
Today, much to my chagrin, we are about to hear that the agency's
well-publicized post-MacDonald review, ostensibly designed to correct
listing and critical habitat decisions--decisions tainted by politics--
was a boondoggle; it is fixing nothing. It was too narrow, too fast,
and too sloppy.
Among other things, our Government Accountability Office witness
will tell us that agency reviewers automatically discounted from
scrutiny any decisions that could not be directly linked to tampering
by MacDonald. Yet her fingerprints may have been all over countless
decisions that were given automatic immunity from the Fish and Wildlife
Service's review. Among them were decisions that scientists crafted not
based purely on the science but, rather, according to what they
anticipated might gain MacDonald's political seal of approval.
Worse still, GAO now reveals to us that other Interior officials
also influenced ESA decisions, and those folks are still roaming the
halls of the Interior Department, unchecked.
As a result, we can have no confidence that political tinkering
with the ESA program is being addressed any better now than it was
under MacDonald's reign.
Today, we will also hear testimony about the untenable delay of a
rule designed to protect the severely depleted North Atlantic right
whale from ship strikes--the latest public example of covert White
House interference with endangered species.
It has become abundantly clear that this Administration does not
give one whit about the ESA. Its strong-arming of Federal scientists,
slow-walking of listing decisions, and stonewalling of new rules have
convinced me that every attempt to fix the mismanagement of the
endangered species program under this Administration is a lost cause.
No matter how deeply this Committee looks or how hard we push to
conduct real, valid oversight, we are hamstrung by secrecy and
deception. For example, I, along with Representatives Peter DeFazio and
Jay Inslee requested documents related to the northern spotted owl. But
of the boxes of documents sent to us in response to that request, we
find barely any that mention the names of Agriculture Undersecretary
Mark Rey, Deputy Undersecretary of Agriculture Dave Tenney, or Interior
Deputy Secretary Lynn Scarlett, who all served on the ``Washington
Oversight Committee.'' Though it may be a bad pun, my reaction is:
something smells fishy here.
As Chairman of this Committee, I am forced to conclude that not
only has the endangered species program been sorely politicized, but
effort after effort supposedly designed to correct the mishandling of
the program by this Administration and its agencies has also been badly
bungled.
At this point, the best hope for endangered species may simply be
to cling to life until after January when this President and his
cronies, at long last, hit the unemployment line.
______
STATEMENT OF THE HONORABLE ADRIAN SMITH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEBRASKA
Mr. Smith. Thank you, Mr. Chairman.
Today, we are holding an annual oversight hearing on the
Endangered Species Act. This year it is entitled, ``The Danger
of Deception: Do Endangered Species Have a Chance?'' While it
certainly is an interesting title, under current law I believe
the chance of recovery is almost zero.
For 12 years the Republican House Majority not only
reviewed the effectiveness of this Act, but we tried to improve
this law for both wildlife and humans. While ultimately we were
unsuccessful in gaining the concurrence of the other body, at
least we tried to do something positive.
It has been over 7,000 days since the last ESA bill was
signed into law, 5,709 days since the last authorization
expired, and 504 days with the new Majority controlling
Congress, and apparently the Act is perceived to be working
well. I find that a stunning conclusion, especially in light of
the fact that the Director of the Fish and Wildlife Service has
testified that they have not made a single listing or critical
habitat designation on their own in over a decade.
The Fish and Wildlife Service doesn't run this program. It
seems to be run by narrow special interests enriching
themselves on taxpayer dollars by filing endless lawsuits. I
can tell you that no one wins with litigation of this nature.
This hearing will address a number of species. Let me
comment on just a few. I am sure we will have an interesting
discussion on the so-called recovery of the northern spotted
owl. We know now that the population of this threatened species
is declining by about three percent each year. This is
remarkable because all of the so-called experts told us that if
you shut down all the timber mills, destroyed the lives and
futures of thousands of loggers and their families, then the
northern spotted owl would thrive in the Northwest forest.
Now the Fish and Wildlife Service has identified the barred
owl as the single greatest threat to the continued existence of
the spotted owl. In fact, their recovery plan states that the
best action to protect spotted owls is to remove thousands of
barred owls currently occupying its habitat. This may be
difficult since barred owls are strictly protected under the
Migratory Bird Treaty Act.
While barred owls may now outnumber spotted owls, the
fundamental threat to all wildlife in the Northwest forest is a
failure to effectively address wildfires. They will sadly
occur, and this Congress will do nothing to remove the fuel
that makes these fires almost inevitable. In terms of spotted
owls, apparently there is little chance of recovery, and the
residents of the Northwest were clearly deceived.
Second, we are likely to hear complaints that the Fish and
Wildlife Service has failed to adequately protect the
reintroduced Mexican gray wolf in Arizona and New Mexico. In
this case, it is hard to believe that anyone was deceived
because as a ``nonessential experimental population'' ranchers
have a legal right to protect their lives and livestock from
these wolves. The law is clear. If a gray wolf attacks a steer
or a horse they may be killed.
Finally, let me say to the Assistant Secretary of the
Interior that we provided 39 months to review the listing
petition for the polar bear, and still the wrong decision was
made. It is the wrong decision because the worldwide population
of polar bears is healthy. In fact, the population has almost
doubled in the last 50 years.
It is the wrong decision because there is no practical way
to improve or retain the habitat for these species, and, most
importantly, it is the wrong decision because it is an assault
on sound science and commonsense. By listing the polar bear,
the Fish and Wildlife Service has deceived the American people
into thinking that this species is on the brink of extinction
and that it can maintain or even increase its sea ice habitat.
Mr. Chairman, after 20 years it is way past due to
modernize the Endangered Species Act because the current one
percent recovery rate simply perpetuates a cruel deception on
the American people. Let us give these species a real chance to
survive in the future.
Thank you, Mr. Chairman.
The Chairman. The Chair thanks the acting Ranking Member.
Mr. DeFazio? Before recognizing other Members, let me take
a moment to recognize and welcome a new Member of our
Committee, Mr. Scalise of Louisiana. We welcome you and
congratulate you on your victory. Glad to have you a Member of
the Natural Resources Committee.
Mr. Scalise. It is a pleasure.
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.
I know that the focus of this hearing is greater than the
issues surrounding the northern spotted owl growth force and
the Pacific Northwest, but since the gentleman just spoke who
clearly knows nothing of my region or my forests--to tell the
truth, I don't even know where you are from, but I have to
respond.
We are back where we were in the Bush I Administration
where you are trying to resolve incredibly complicated and
difficult environmental problems with political science. It
defies the law. It defies commonsense, and the losers are the
environment and the people I represent.
I represent a lot of those rural communities that have been
devastated because of changes in forest policy in this country.
I have tried to provide a commonsense direction, different than
the Clinton forest plan, and way different than what this
Administration--this Administration actually has kind of dialed
back and dug out something called the ``Jameson Plan.''
Now, I like Sy Jameson. He was a fun guy, but as head of
the BLM, he cooked up a plan to deal with what was then the
entire closure of our forests to timber harvesting that had no
support from any legitimate scientists. It was laughed out of
court and brought an injunction on all timber harvesting, and
this Administration has taken us right back to that spot under
the guise of doing a favor for the people of the Pacific
Northwest. For the people who live in rural communities and the
timber industry, they are cruising us right toward a disaster
again.
It doesn't have to happen, and I hope there will be some
result from this hearing today to redirect this Administration
in a more productive direction because if they follow through
with their flawed science we are going to end up with another
court injunction, and we will get even less timber harvest than
we are getting today.
I am working on a credible plan that could double the
Federal timber harvest. Part of it is reflecting a little bit
of what they propose on the east side, but on the west side
they are just going after the habitat, the last vestiges of old
growth. That is what started the whole controversy, and until
you protect that old growth, you are not going to protect
adequately the species, the environment, and you are not going
to end the forest wars in the Pacific Northwest.
Thank you, Mr. Chairman.
The Chairman. Do other Members wish recognition? Let me
see. The gentleman from Arizona, Mr. Grijalva? The gentleman
from Washington, Mr. Inslee?
Mr. Inslee. Thank you. I assume we are doing opening
statements, I assume.
The Chairman. Yes, we are.
STATEMENT OF THE HONORABLE JAY INSLEE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
Mr. Inslee. Thank you, Mr. Chair. I appreciate the Chair's
work on this issue.
I think the Chair knows there are many of us who have been
very concerned about this Administration's failure to follow
the best available science, which is required under the ESA
and, in effect, they have followed the best available excuses
time after time for inaction. It is most disturbing.
Out in Washington State, it is not just one species that my
grandkids may not get to enjoy as I did growing up in
Washington State, but it is several. This has been something
that has caused a lot of anger in the State of Washington that
back in D.C. our grandkids are not getting the protection they
deserve to enjoy nature's bounty.
I just want to mention a couple of them, most recently of
concern. This alleged polar bear listing was not a listing of
an endangered species. It was a listing of the things the
Administration refuses to do to save that species. On that list
is, number one, the refusal by the Administration to do
anything to stop global warming, which is the existential
threat to the continuation of the polar bears. That is number
one.
Number two, they have essentially, the second thing on the
list, insisted on a business-as-usual approach on oil and gas
development. Again, a refusal to act.
Number three on that list of inaction is, they refuse to
designate critical habitat for the polar bear, as far as I can
tell, so what we have is a listing on the polar bear. It is
just a list of what your Federal government refuses to do when
this iconic creature of the Arctic is going to go extinct. I
think people have a right to be very angry about that.
On the spotted owl issue, we are going backwards in the
State of Washington with this alleged draft recovery plan. It
goes backwards in protection of old growth. It goes backwards
in protection of habitat. It is not a recovery plan. It is just
we haven't had a chance to recover from multiple years of this
Administration's multiple failures on listing.
I just hope that the next Administration, because I have
just about given up on this one, will finally start following
science. We don't have a lot of time for these species, and I
appreciate the Chair's willingness to expose these multiple
failures. Thank you.
The Chairman. Any other Members wish to make opening
statements? The gentleman from Maryland, Mr. Sarbanes?
Yes? The gentleman from Nebraska?
Mr. Smith. I would submit for the record an opening
statement by Mr. Lamborn.
The Chairman. Without objection. It will be made part of
the record.
[The prepared statement of Mr. Lamborn follows:]
Statement of The Honorable Doug Lamborn, a Representative in Congress
from the State of Colorado
Thank you, Mr. Chairman, for scheduling this hearing today.
Continuing difficulties surrounding implementation of the
Endangered Species Act remain a clear problem for many in Colorado.
From politicizing research to stopping property owners in their tracks,
one ESA listing in my area has become very contentious.
The Preble's Meadow Jumping Mouse. This and similar mice are
located throughout half of the North American continent.
The scientist who originally classified the Preble's mouse as a
subspecies, Dr. Krutzsch, has since recanted his original work and no
longer supports the original classification. Numerous recent scientific
studies have concluded that the Preble's mouse is both physically and
genetically indistinguishable from other similar mice. It should never
have been listed.
With scientific evidence to the species' abundance and with the
negative economic impacts on Colorado's economy, this listing is a
classic example of environmental activists' abuse of federal ESA law to
stop growth and development.
I support delisting of the Preble's mouse from Colorado's
Threatened and Endangered Species List. The Fish and Wildlife Service
has already removed its listing in Wyoming, and rightfully so. But in
defiance of common sense, the mouse is suddenly threatened when you
cross the state line going south.
The history of the ESA reveals an abysmal record of species
recovery, less than one percent, at the great cost of loss of property
rights, restricted access to public lands, and lawsuit abuse.
To our colleagues joining us today and their constituents, I
sympathize with all those who've been caught in the middle of the ESA's
crosshairs. It's time for Congress to make serious reform of the
Endangered Species Act a reality.
Thank you, Mr. Chairman.
______
The Chairman. We will now proceed to our first panel
composed of the following members: Robin Nazzaro, the Director
of the Natural Resources and Environment, U.S. Government
Accountability Office; R. Lyle Laverty, the Assistant Secretary
for Fish and Wildlife and Parks, U.S. Department of the
Interior, accompanied by Ren Lohoefener of the Fish and
Wildlife Service, U.S. Department of Interior, and Ed Shepard,
Bureau of Land Management, U.S. Department of Interior; and our
third panelist is Jane Luxton, the General Counsel, National
Oceanic and Atmospheric Administration, U.S. Department of
Commerce.
Ladies and gentlemen, we welcome you to our Committee. We
have your prepared testimony, and it will be made part of the
record as if actually read. You are encouraged to summarize
within five minutes, and may proceed as you desire.
Ms. Nazzaro. I will go first.
The Chairman. We will go with Ms. Nazzaro first then.
STATEMENT OF ROBIN NAZZARO, DIRECTOR, NATURAL RESOURCES AND
ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Ms. Nazzaro. Thank you, Mr. Chairman and Members of the
Committee. I am pleased to be here today to discuss the
Endangered Species Act decision making at the Department of the
Interior's U.S. Fish and Wildlife Service.
As has been noted, recent controversy has surrounded
decisions specifically over whether the Service bases its
decisions on scientific data or on political considerations.
Generally, Interior and the Service are required to use the
best available scientific information when making key decisions
under ESA.
Given this recent controversy, Interior directed the
Service to review ESA decisions to determine which decisions
may have been unduly influenced. In this action, the Service
identified eight decisions for potential revision.
My statement today will address three issues: What types of
decisions, if any, were excluded from the Service's review that
may have been inappropriately influenced; to what extent the
Service's May 2005 informal guidance affected the processing of
petitions to list a species, which we refer to as the 90-day
petition; and to what extent the Service has, before delisting
species, met recovery criteria.
In summary, we found that several types of decisions were
excluded from the Service's review of decisions that may have
been inappropriately influenced. First, while the Service
focused solely on whether former Deputy Assistant Secretary
Julie MacDonald influenced the decision directly, we found that
other Interior officials also influenced some ESA decisions.
For example, after reviewing a petition to list the Miami
blue butterfly on an emergency basis, officials at all levels
supported a recommendation for listing the species. Citing a
Florida state management plan and the existence of a captive
bred population, however, an Interior official besides Ms.
MacDonald determined that emergency listing was not warranted.
The second criterion was that the scientific basis of the
decision had been compromised. This criterion excluded policy
decisions that limited the application of science. Under Ms.
MacDonald, several informal policies were established that
influenced how science was to be used when making ESA
decisions. For example, a practice was developed that Service
staff should generally not use site recovery plans, which
contain important information when developing critical habitat
designations.
Third, the Service excluded decisions that were changed,
but not significantly or to the point of negative impact on the
species. For example, under Ms. MacDonald's influence,
subterranean waters were removed from the critical habitat
designation for the Comal Springs invertebrates because the
Service believed aboveground waters were more important
habitat.
Finally, we identified several other categories of
decisions that were excluded, including decisions that could
not be reserved, such as decisions that had already been
addressed by the courts or where development had already
occurred and the habitats had been destroyed.
Regarding the May 2005 informal guidance on the processing
of 90-day petitions, concerns were raised that this guidance
would bias petition findings against listing species. In our
survey of 54 petitioned findings issued by the Service from
2005 to 2007, we found that biologists used information in
addition to that cited by the petitioner for both support and
to refute listing petitions. Thus, this guidance had no
substantive effect on petition findings.
The Service recognizes the need for guidance to eliminate
confusion and inconsistency in the processing of 90-day
petitions, but we note that the need to finalize this guidance
is more urgent than ever with the Service's recent receipt of
two petitions to list 681 species since we found that none of
the petitioned findings we reviewed were issued within the
desired 90-day timeframe.
During 2005 through 2007, the median processing time was
900 days, or about two and a half years, with a range of 100
days to over 15 years. Additionally, this Service faces several
challenges responding to court decisions issued since 2004 in
the processing of these 90-day petitions.
Finally, of the eight species listed because of recovery
from 2000 to 2007, the Service determined that recovery
criteria were completely met for five species and partially met
for the remaining three species. Although the ESA does not
explicitly require the Service to follow recovery plans when
delisting species, the courts have held that ESA's listing and
delisting threat factors must be addressed to the maximum
extent practicable when developing recovery criteria.
In 2006, we found that only five of 107 recovery plans
contained either recovery criteria to demonstrate consideration
of these threat factors, or a statement about why it was not
practicable to include such criteria. In January of this year
the Director of the Service issued a memorandum requiring all
new and revised recovery plans to include criteria addressing
each of the five threat factors. Assuming successful
implementation of this directive, we believe that future
delistings will more likely meet recovery criteria and address
ESA's factors.
Mr. Chairman, this concludes my prepared statement. I would
be happy to respond to any questions you or other Members of
the Committee may have at this time.
[The prepared statement of Ms. Nazzaro follows:]
Statement of Robin M. Nazzaro, Director, Natural Resources and
Environment, United States Government Accountability Office
Mr. Chairman and Members of the Committee:
I am pleased to be here today to discuss our work related to
Endangered Species Act (ESA) decision making and allegations that
implementation of the act has been tainted by political interference.
\1\ Recent controversy has surrounded decisions by the Department of
the Interior's (Interior) U.S. Fish and Wildlife Service (Service),
specifically, over the role that ``sound science'' plays in decisions
made under the ESA--that is, whether the Service bases its decisions on
scientific data or on political considerations. Generally, Interior and
the Service are required to use the best available scientific
information when making key ESA decisions. At Interior some of the
controversy centered on whether a former Deputy Assistant Secretary,
Julie MacDonald, improperly influenced ESA decisions so as to limit
protections for threatened and endangered species. On the basis of an
anonymous complaint in April 2006, Interior's Office of Inspector
General began investigating Ms. MacDonald's activities and whether her
involvement in ESA implementation had undermined species protection.
\2\ Ms. MacDonald resigned on May 1, 2007, and little over a week
later, the House Committee on Natural Resources held a hearing on
political influence in ESA decision making. \3\ After the hearing,
Interior asked the Service to determine which of its ESA decisions may
have been inappropriately influenced by Ms. MacDonald.
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\1\ The ESA requires that the law be implemented by the Secretaries
of the Interior and Commerce, who have delegated implementation
authority to the U.S. Fish and Wildlife Service and the National
Oceanic and Atmospheric Administration's Fisheries Service, (formerly
the National Marine Fisheries Service) respectively. The U.S. Fish and
Wildlife Service is responsible for implementing the ESA for freshwater
and terrestrial species. The National Oceanic and Atmospheric
Administration's Fisheries Service is responsible for implementing the
ESA for most marine species and anadromous fishes (which spend portions
of their lifecycle in both fresh and salt water).
\2\ Department of the Interior, Office of Inspector General,
Investigative Report on Allegations against Julie MacDonald, Deputy
Assistant Secretary, Fish, Wildlife and Parks (Washington, D.C.: Mar.
23, 2007). The Inspector General concluded that Ms. MacDonald had
violated federal rules by sending internal agency documents to industry
lobbyists. The Office of Inspector General issued a second
investigative report on Ms. MacDonald's involvement in an ESA decision
about the Sacramento splittail fish on November 27, 2007. This
investigation concluded that Ms. MacDonald stood to gain financially
from the decision and she should therefore have recused herself.
Additionally, as of March 31, 2008, the Office of Inspector General was
conducting a third investigation, concerning potential inappropriate
political interference in ESA decisions for 20 species.
\3\ Endangered Species Act Implementation: Science or Politics?
Oversight Hearing before the House Committee on Natural Resources,
110th Cong. (2007).
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In response to this directive, the Service identified eight
decisions for further review, generally according to the following
three criteria: (1) whether Ms. MacDonald influenced the decision
directly, (2) was the scientific basis of the decision compromised, and
(3) did the decision significantly change and result in a potentially
negative impact on the species. The eight decisions selected for
further review were out of a universe of more than 200 ESA decisions
reviewed by Ms. MacDonald during her almost 5 years of employment at
Interior. Upon further review, the Service concluded that seven of the
eight selected decisions warranted revision. The Service has proposed
revisions for three of the decisions and intends to revise the
remaining decisions, as appropriate, in the coming years.
On December 17, 2007, we briefed your staff on our findings related
to our work on the Service's review of ESA decisions that may have been
inappropriately influenced. This testimony formally conveys the
information provided during that briefing, as updated to reflect the
most recent developments (see appendix III). In addition, this
testimony presents the results of our work conducted since the December
2007 briefing on two other ESA issues.
The purpose of the ESA is to conserve threatened and endangered
species and the ecosystems on which they depend. The act requires
listing a species as endangered if it faces extinction throughout all
or a significant portion of its range and as threatened if it is likely
to become endangered in the foreseeable future. \4\ Specifically, in
determining whether to list or delist a species, the Service evaluates
the following five threat factors contained in the act:
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\4\ 16 U.S.C. Sec. Sec. 1532(6), (20); 1533(a).
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1. whether a species' habitat or range is under a present or
potential threat of destruction, modification, or curtailment;
2. whether the species is subject to overuse for commercial,
recreational, scientific, or educational purposes;
3. the risk of existing disease or predation;
4. whether existing regulatory mechanisms are adequate; and
5. whether other natural or manmade factors affect a species'
continued existence. \5\
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\5\ 16 U.S.C. Sec. 1533(a)(1).
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The process to list a species begins either through the Service's
own initiative or through a petition (referred to as a 90-day petition)
from an ``interested person,'' and it is governed by the ESA, federal
regulations, and other guidance that the Service may issue. The Service
may initiate a review of species without a petition by conducting a
candidate assessment to determine whether a species ought to be listed.
\6\ A species may also be listed through the petition process. The ESA
directs the Service to make a finding within 90 days (to the maximum
extent practicable) after receiving a petition ``as to whether the
petition presents substantial scientific or commercial information
indicating that the petitioned action may be warranted.'' \7\ Federal
regulations define ``substantial information'' as the amount of
information that would lead a reasonable person to believe that the
petitioned action may be warranted. \8\ If the Service determines that
the listing process should proceed, it issues a ``substantial'' 90-day
finding, then conducts an in-depth 12-month review of the status of the
species to determine if, according to the best available scientific and
commercial information, the petitioned action is warranted. If the
Service determines that the petition does not present credible evidence
supporting plausible claims, it issues a negative, ``not substantial''
90-day finding. A negative 90-day finding can be challenged in court.
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\6\ The Service's candidate conservation program maintains a list
of species for which listing is warranted but precluded by other
higher-priority actions. According to Service officials, the candidate
conservation program can support actions to reduce or remove threats so
that listing may become unnecessary. Candidate species may be
identified through assessments initiated by the Service or through a
12-month finding on a petition to list a species when the finding
concludes that listing is warranted but precluded by higher-priority
listing actions. Candidate assessments use the same ``best available
science'' standard as used for a 12-month finding on a petition to list
a species.
\7\ 16 U.S.C. Sec. 1533(b)(3)(A).
\8\ 50 C.F.R. Sec. 424.14(b).
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In May 2005, the Service distributed a guidance document via e-mail
to its endangered-species biologists that could have been interpreted
as instructing them to use additional information collected to evaluate
a 90-day petition only to refute statements made in the petition.
Concerns then arose that this informal guidance would bias petition
findings against listing species, thereby reducing the number of
species that could have a chance at protection under the ESA. \9\
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\9\ Seventy-two percent of the 90-day petition findings published
in the Federal Register from calendar years 2005 through 2007 were on
petitions to list species as threatened or endangered. According to
federal regulations (50 C.F.R. Sec. 424.14), petitioned actions may
include (1) petitions to list, delist, or reclassify species
(reclassification would involve ``up-listing'' a species from
threatened to endangered or ``down-listing'' a species from endangered
to threatened); (2) petitions to revise critical habitat; and (3)
petitions to designate critical habitat or adopt special rules. The
remaining 28 percent of the 90-day petition findings published in the
Federal Register from calendar years 2005 through 2007 were on
petitions to delist species, reclassify species, or revise critical
habitat designations.
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Environmental groups and the courts have also raised concern about
the implementation of recovery plans for delisted species,
specifically, that the Service has delisted species without fulfilling
recovery criteria outlined in recovery plans. The ESA generally
requires the Service to develop and implement recovery plans for the
conservation of listed species.\10\ Since the act was amended in 1988,
the Service has been required to incorporate, to the maximum extent
practicable, several key elements in each recovery plan, including
objective, measurable recovery criteria that, when met, would enable
the species to be removed from the list of threatened or endangered
species.\11\ Recovery plans are not regulatory documents. Rather, they
provide guidance on methods to minimize threats to listed species and
on criteria that may be used to determine when recovery is achieved. To
develop and implement a recovery plan, the Service may appoint a
recovery team consisting of ``appropriate public and private agencies
and institutions, and other qualified persons.'' After a recovery plan
has been drafted or revised, the Service is required to provide public
notice and an opportunity for public review and comment. Although the
ESA does not explicitly require the Service to follow recovery plans
when delisting species, \12\ the possible high level of public
involvement in the development of recovery plans creates the
expectation that the Service will adhere to them.
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\10\ 16 U.S.C. Sec. Sec. 1533(f)(1)-(5). Recovery plans are not
required if the Service determines that a plan will not promote the
species' conservation.
\11\ 16 U.S.C. Sec. 1533(f)(1)(B). As originally enacted in 1973,
the ESA did not contain a requirement for recovery plans, see Pub. L.
No. 93-305, 87 Stat. 884 (1973). A general provision on recovery plans
was first added in 1978 by Pub. L. No. 95-632, Sec. 11(5), 92 Stat.
3751, 3766 (1978). The general provision was amended in 1982 by Pub. L.
No. 97-304, Sec. Sec. 2(a)(4)(B)-(D), 96 Stat. 1411, 1415 (1982). The
detailed provisions that exist today on recovery plans were largely
added in 1988 by Pub. L. No. 100-478, title I, Sec. 1003, 102 Stat.
2306-7 (1988).
\12\ See 16 U.S.C. Sec. 1533(a)(1); 50 C.F.R. Sec. 424.11(c).
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In this context, from our December 2007 briefing, we are reporting
on the types of ESA decisions, if any, excluded from the Service's
selection process of ESA decisions that had potentially been
inappropriately influenced. Additionally, we are reporting on the
extent to which the Service's May 2005 informal guidance affected the
Service's decisions published from 2005 through 2007 on petitions to
list or delist species and the extent to which the Service determined,
before delisting, whether species met recovery criteria outlined in
recovery plans.
To determine what types of ESA decisions, if any, were excluded
from the Service's selection process for decisions to review, we
interviewed the Director of the Service and all eight regional
directors, and we conducted site visits, phone interviews, or both with
staff from ten field offices in five regions that were actively engaged
in ESA decision making. We also reviewed Service policies and
procedures for making ESA decisions, as well as documentation on the
Service's process for selecting decisions to review and on the status
of the review. To evaluate the extent to which the May 2005 informal
guidance affected 90-day petition findings, we surveyed 44 current and
former Service biologists responsible for drafting 54 90-day petition
findings issued from 2005 through 2007. We included only listing and
delisting petitions for U.S. species; for this reason and others, we
excluded 13 petition findings between 2005 and 2007 from our sample.
\13\ To determine the extent to which the Service met recovery criteria
outlined in recovery plans before delisting a species, we developed a
list of all U.S. species delisted because of recovery from 2000 through
2007 and reviewed recovery plans and Federal Register proposed and
final delisting decisions (rules); this information indicated whether
the Service believed that it had met the criteria laid out in the
recovery plans for the eight delisted U.S. species we identified.
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\13\ We excluded 13 petition findings from our 2005-2007 sample for
the following reasons: 5 had been overturned by the courts or were
being redone as a result of a settlement agreement; 3 involved up-
listing already protected species from threatened to endangered; 2
involved ongoing litigation; 2 involved species located outside the
United States; and 1 involved a petition to revise a critical habitat
designation for a species that was already protected.
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We conducted this performance audit from August 2007 to May 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives. A more detailed discussion
or our scope and methodology appears in Appendix I. Appendix II
presents a table of the 90-day petition findings included and excluded
from our sample.
Summary
Under the criteria the Service used to select decisions to review
for possible inappropriate influence, several types of ESA decisions
were excluded. First, while the Service focused solely on Ms.
MacDonald, we found that other Interior officials also influenced some
ESA decisions. For example, after reviewing a petition to list the
Miami blue butterfly on an emergency basis, Service officials at all
levels supported a recommendation for listing the species. Citing a
Florida state management plan and existence of a captive-bred
population, however, an Interior official besides Ms. MacDonald
determined that emergency listing was not warranted, and the blue
butterfly was designated as a candidate instead of a listed species.
Second, the Service excluded policy decisions that limited the
application of science, focusing instead only on those decisions where
the scientific basis of the decision may have been compromised. Under
Ms. MacDonald, several informal policies were established that
influenced how science was to be used when making ESA decisions. Third,
the Service excluded decisions that were changed but not significantly
or to the point of negative impact on the species. Finally, we
identified several other categories of decisions that in some or all
cases were excluded from the Service's selection process. For example,
decisions were excluded from the Service's selection process if it was
determined that the decision could not be reversed or if it could not
be conclusively determined that Ms. MacDonald changed the decision.
While the Service's May 2005 informal guidance had no substantive
effect on the processing of 90-day petitions, the Service still faces
other challenges in processing these petitions. Stakeholders have
expressed concern that the May 2005 guidance was slanted more toward
refuting petitioners' listing claims, rather than encouraging Service
biologists to use information to both support and refute listing
petitions; consequently, they feared that a greater number of negative
90-day petition findings would result. In our survey of 54 90-day
petition findings issued by the Service from 2005 through 2007, we
found that biologists used information in addition to that cited by the
petitioner to both support and refute claims made in the petitions, as
applicable, including during the 18-month period when the May 2005
informal guidance was being used. In November 2006, the Service
distributed new draft guidance on the processing of 90-day petitions,
which specified that additional information in Service files could be
used to support and refute issues raised in the petition. Although the
May 2005 informal guidance did not have a substantive effect on the
Service's processing of 90-day petitions, the Service faces challenges
in processing petitions in a timely manner and in responding to court
decisions issued since 2004. None of the 90-day petition findings
issued from 2005 through 2007 were issued within the desired 90-day
time frame. During this period, the median processing time was 900
days, or about 2.5 years, with a range of 100 days to 5,545 days (more
than 15 years). Additionally, the Service faces several challenges in
responding to court decisions issued since 2004. For example, the
Service has not developed new official guidance on how to process of
90-day petitions after a portion of the prior guidance was invalidated
by the courts.
Of the eight U.S. species delisted from 2000 through 2007 because
of recovery, the Service reported that recovery criteria were
completely met for five species and partially met for the remaining
three species because some recovery criteria were outdated or otherwise
not achievable. When the delistings were first proposed, however, only
two of the eight species had completely met all their respective
recovery criteria. While the recovery criteria were not completely met
in every case for each of the species we reviewed, the Service
determined that the five threat factors listed in the ESA no longer
posed a significant enough threat to the continued existence of the
species to warrant continued listing as threatened or endangered. Since
the ESA was amended in 1988, the Service has been required to
incorporate in each recovery plan, to the maximum extent practicable,
objective, measurable criteria that when met would result in a
determination, in accordance with the provisions of the ESA, that the
species should be removed from the list of threatened and endangered
species (i.e., delisted). Courts have held that the Service must
address the ESA's five threat factors for listing/delisting in
developing recovery criteria, to the maximum extent practicable. In a
2006 report, we found that only 5 of the 107 recovery plans we reviewed
included recovery criteria that addressed all five threat factors. We
recommended that the Service include in recovery planning guidance
direction that all new and revised recovery plans contain either
recovery criteria to demonstrate consideration of all five threat
factors or a statement about why it is not practicable to include such
criteria. In January 2008, in response to our recommendation, the
Director of the Service issued a memorandum requiring all new and
revised recovery plans to include criteria addressing each of the five
threat factors. Assuming successful implementation of this directive,
future delistings should meet the criteria laid out in recovery plans,
except in situations where new information indicates criteria are no
longer valid.
Although we requested comments from Interior on our findings and
conclusions, none were provided in time for them to be included as part
of this testimony.
Background
In addition to 90-day petition findings, 12-month status reviews,
listings, and delistings, other key categories of ESA decisions include
critical habitat designations, recovery plans, section 7 consultations,
and habitat conservation plans (see table 1). \14\
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\14\ Under the ESA the term ``species'' includes any distinct
population segment of any species of vertebrate fish or wildlife which
interbreeds when mature. 16 U.S.C. Sec. 1532(16).
[GRAPHIC] [TIFF OMITTED] T2492.040
Service staff at headquarters, eight regional offices, and 81 field
offices are largely responsible for implementing the ESA. Field office
staff generally draft ESA decisions; listing, delisting, and critical
habitat decisions are forwarded to regional and headquarters offices
for review. Service headquarters forwards listing decisions to
Interior's Office of Assistant Secretary for Fish and Wildlife and
Parks for review, although it is the Service Director who generally
approves the final decisions. The Assistant Secretary of the Interior
for Fish and Wildlife and Parks makes final critical habitat decisions,
after considering the recommendation of the Service and considering
economic, national security, and other factors. Although the Service is
responsible for making science-based decisions, Interior takes
responsibility for applying policy and other considerations to
scientific recommendations.
In most cases, ESA decisions must be based at least in part on the
best available scientific information (see table 1). To ensure that the
agency is applying the best available scientific information, the
Service consults with experts and considers information from federal
and state agencies, academia, other stakeholders, and the general
public; some ESA decisions are both ``peer reviewed'' and reviewed
internally to help ensure that they are based on the best available
science. Nevertheless, because of differing interpretations of ``best
available scientific information'' and other key concepts from the ESA,
such as``substantial'' and ``may be warranted,'' conservation advocacy
groups have expressed concerns that ESA decisions are particularly
vulnerable to political interference from officials within Interior.
While Ms. MacDonald was at Interior in two positions from July 7,
2002, through May 1, 2007, she reviewed more than 200 ESA decisions.
After a May 9, 2007, congressional hearing, Interior's Deputy Secretary
directed the Service Director to examine all work products produced by
the Service and reviewed by Ms. MacDonald that could require additional
review because of her involvement. Service Director Hall said the
selection process should include any type of ESA decision made during
Ms. MacDonald's time in office. He delegated the selection process to
the regional directors and granted them considerable discretion in
making their selections for potential revision.
The regions generally applied three criteria to identify decisions
for potential revision: (1) Ms. MacDonald influenced the decision
directly, (2) the scientific basis of the decision was compromised, and
(3) the decision was significantly changed and resulted in a
potentially negative impact on the species. Using these criteria, the
Service ultimately selected eight decisions for further review to
determine if the decision warranted revision. \15\ After further
review, the Service concluded that seven of the eight decisions
warranted revision (see table 2).
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\15\ Initially, the regional offices identified a total of 11
decisions for potential revision. One of these, on the Mexican garter
snake, was subsequently withdrawn after further discussion determined
that the decision was made internally by Service headquarters. Two
additional decisions, regarding the bull trout and the marbled
murrelet, were withdrawn by the region after it was determined that
neither decision involved the inappropriate use of science but rather
involved policy interpretations.
[GRAPHIC] [TIFF OMITTED] T2492.041
Several Types of Decisions Were Excluded from the Service's Review of
Potentially Inappropriately Influenced ESA Decisions
Several types of decisions were excluded from the Service's review
of decisions that may have been inappropriately influenced. First,
while the Service focused solely on Ms. MacDonald, we found that other
Interior officials also influenced some ESA decisions. Ms. MacDonald
was the primary reviewer of most ESA decisions during her tenure, but
other Interior officials were also involved. For example, in the
Southeast, after reviewing a petition to list the Miami blue butterfly
on an emergency basis, Service officials at all levels supported a
recommendation for listing the species. Citing a Florida state
management plan and existence of a captive-bred population, however, an
Interior official other than Ms. MacDonald determined that emergency
listing was not warranted, and the blue butterfly was instead
designated as a candidate, not a listed species.
Second, the Service excluded policy decisions that limited the
application of science, focusing instead only on those decisions where
the scientific basis of the decision may have been compromised. Under
Ms. MacDonald, several informal policies were established that
influenced how science was to be used when making ESA decisions. For
example, a practice was developed that Service staff should generally
not use or cite recovery plans when developing critical habitat
designations. Recovery plans can contain important scientific
information that may aid in making a critical habitat designation. One
Service headquarters official explained, however, that Ms. MacDonald
believed that recovery plans were overly aspirational and included more
land than was absolutely essential to the species' recovery. Under
another informal policy, the ESA wording ``occupied by the species at
the time it is listed'' was narrowly applied when designating critical
habitat. Service biologists were restricted to interpreting occupied
habitat as only that habitat for which they had records showing the
species to be present within specified dates, such as within 10 years
of when the species was listed. In the case of the proposed critical
habitat for the bull trout, Ms. MacDonald questioned Service
biologists' conclusions about the species' occupied habitat. As a
result, some proposed critical habitat areas were removed, in part
because occupancy by the species could not be ascertained.
Third, the Service excluded decisions that were changed but not
significantly or to the point of negative impact on the species. For
example, under Ms. MacDonald's influence, subterranean waters were
removed from the critical habitat designation for Comal Springs
invertebrates. Service staff said they believed that the exclusion of
subterranean waters would not significantly affect the species because
aboveground waters were more important habitat. They also acknowledged
that not much is known about these species' use of subterranean waters.
Finally, we identified several other categories of decisions that,
in some or all cases, were excluded from the Service's selection
process. For example, in some cases that we identified, decisions that
had already been addressed by the courts were excluded from the
Service's selection process; decisions that could not be reversed were
also excluded. In the case of the Palos Verdes blue butterfly, Navy-
owned land that was critical habitat was exchanged after involvement by
Ms. MacDonald in a section 7 consultation. As a result, the habitat of
the species' last known wild population was destroyed by development,
and therefore reversing the decision would not have been possible.
Additionally, decisions were excluded from the Service's selection
process if it was determined that review would not be an efficient use
of resources or if it could not be conclusively determined that Ms.
MacDonald altered the decision. Several Service staff cited instances
where they believed that Ms. MacDonald had altered decisions, but
because the documentation was not clear, they could not ascertain that
she was responsible for the changes. Additionally, decisions that were
implicitly attributed to Ms. MacDonald were excluded from the selection
process. Service staff described a climate of ``Julie-proofing'' where,
in response to continual questioning by Ms. MacDonald about their
scientific reasoning, they eventually learned to anticipate what might
be approved and wrote their decisions accordingly.
The Service's May 2005 Informal Guidance Had No Substantive Effect on
90-Day Petition Findings, Although Other Challenges Exist
While the Service's May 2005 informal guidance had no substantive
effect on the processing of 90-day petition findings, the Service still
faces several other challenges in processing these petitions.
Stakeholders have expressed concern that the wording of the May 2005
guidance was slanted more toward refuting petitioners' listing claims,
rather than encouraging Service biologists to use information to both
support and refute listing petitions; consequently, they feared that a
greater number of negative 90-day petition findings would result.
According to a senior Service official, it was never the Service's
position that information collected to evaluate a petition could be
used to support only one side, specifically, only to refute the
petition. Rather, according to a senior Service official, its position
is and has been that additional collected information can be used to
either support or refute information presented in the petition; any
additional information is not, however, to be used to augment or
supplement a ``weak'' petition by raising new issues not already
presented. According to the ESA, the petition itself must present
``substantial scientific or commercial information indicating that the
petitioned action may be warranted.'' \16\ Our survey of Service
biologists responsible for drafting the 90-day petition findings issued
from 2005 through 2007 found that the biologists generally used
additional information, as applicable, to support as well as refute
information in the petitions. \17\ The Service is facing several
challenges with regard to the processing of 90-day petition findings.
In particular, the Service finds it difficult to issue decisions within
the desired 90-day time frame and to adjust to various court decisions
issued in the last 4 years.
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\16\ 16 U.S.C. Sec. 1533(b)(3)(A).
\17\ In making a 90-day petition finding, the Service must consider
whether the petition: (1) clearly indicates the administrative measure
recommended and gives scientific and common names of the species
involved; (2) contains detailed narrative justification for the
recommended measure, describing, according to available information,
past and present numbers and distribution of the species involved and
any threats faced by the species; (3) provides information on the
status of the species over all or a significant portion of its range;
and (4) is accompanied by appropriate supporting documentation in the
form of bibliographic references, reprints of pertinent publications,
copies of reports or letters from authorities, and maps. 50 C.F.R.
Sec. 424.14(b)(2).
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Notwithstanding the Service's May 2005 Informal Guidance, Additional
Information Collected by Service Biologists Was Used to Support
and Refute 90-day Petitions
In our survey of 44 Service biologists who prepared 54 90-day
petition findings from 2005 through 2007, we found that additional
information collected to evaluate the petitions was generally used, as
applicable, to both support and refute information in the petitions,
including during the 18-month period when the May 2005 informal
guidance was being used. \18\ The processing of 90-day petition
findings is governed by the ESA, federal regulations, and various
guidance documents distributed by the Service. To direct the
implementation of the law and regulations, and to respond to court
decisions, the Service issues guidance, which is implemented by Service
staff in developing 90-day petition findings. This guidance can come in
formal policies and memorandums signed by the Service Director, or
informal guidance not signed by the Director but distributed by
headquarters to clarify what information should be used and how it
should be used in processing petitions. In July 1996, the Service
issued a formal policy, called Petition Management Guidance, governing
90-day petition findings and 12-month status reviews. \19\ A component
of this document was invalidated by the District of Columbia district
court in June 2004. \20\ According to senior Service officials, since
2004 the Service has distributed a series of instructions through e-
mails, conference calls, and draft guidance documents to clarify the
development of 90-day petition findings. For example, in May 2005, the
Service distributed via e-mail an informal guidance document that
directed its biologists to create an outline listing additional
information--that is, information not cited or referred to in a
petition--that refuted statements made in the petition; biologists were
not to list in the outline any additional information that may have
clarified or supported petition statements. \21\
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\18\ A senior Service official stated that, according to memory, no
other informal guidance documents were issued during this 18-month
period. If specific questions were asked by a particular region or
field office, however, informal guidance could have been given by
officials at Service headquarters through e-mail.
\19\ See 61 Fed. Reg. 36075 (July 9, 1996). This guidance was
issued jointly by the Service and the National Oceanic and Atmospheric
Administration's Fisheries Service.
\20\ ALA v. Norton, Civ. No. 00-2339, 2004 WL 3246687 at *3 (D.D.C.
June 2, 2004).
\21\ A senior Service official stated that the emphasis was put on
compiling information to refute petitioners' claims because if a
petition was found to be ``not substantial,'' the 90-day petition
finding was the agency's final action on that petition. The Service
therefore needed to adequately document in the administrative record
the reasons that the petition was denied.
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We identified a universe of 67 90-day petition findings issued by
the Service from 2005 through 2007. To focus on how the Service used
information to list or delist U.S. species, we surveyed Service
biologists responsible for drafting 54 of the 67 90-day petition
findings. For the 54 90-day petitions included in our survey, 40 were
listing petitions, and 14 were delisting petitions; 25 resulted in
positive 90-day petition findings, and 29 resulted in negative 90-day
petition findings (see table 3).
[GRAPHIC] [TIFF OMITTED] T2492.042
Note: The first time period, January 2005 through April 2005,
includes the 90-day petition findings in our sample issued before the
May 2005 informal guidance was being used. The second time period, May
2005 through November 2006, includes the 18-month period when the May
2005 information guidance was being used. The third time period,
December 2006 through December 2007, includes the 90-day petition
findings in our sample issued after the May 2005 informal guidance was
superseded by new draft guidance in November 2006.
Five of these decisions have been or are being revised as the
result of litigation, and two additional decisions were involved in
ongoing litigation as of March 31, 2008.
In November 2006, the Service distributed new draft guidance on the
processing of 90-day petitions, which specified that additional
information in Service files could be used to refute or support issues
raised in the petition but not to ``augment a weak petition'' by
introducing new issues. For example, if a 90-day petition to list a
species claimed that the species was threatened by predation and
habitat loss, the Service could not supplement the petition by adding
information describing threats posed by disease. The May 2005 informal
guidance was thus in use until this November 2006 guidance was
distributed, or approximately 18 months.
Our survey results showed that in most cases, the additional
information collected by Service biologists when evaluating 90-day
petitions was used to support as well as refute information in
petitions (see table 4). According to the Service biologists we
surveyed, additional information was used exclusively to refute
information in 90-day petitions in only 8 of 54 cases. In these 8
cases, the biologists said, this approach was taken because of the
facts, circumstances, and the additional information specific to each
petition, not because they believed that it was against Service policy
to use additional information to support a petition. In particular,
with regard to the 4 petitions processed during May 2005 through
November 2006 for which additional information was used exclusively to
refute petition information, the biologists stated that the reasons
they did not use information to support claims made in the petition was
that either the claims themselves did not have merit or the information
reviewed did not support the petitioner's claims. Three of the four
biologists responsible for these petitions also stated that they did
not think it was against Service policy to use additional information
to support issues raised in a petition. The fourth biologist was
uncertain whether it was against Service policy to support issues
raised in a petition. \22\
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\22\ The biologist did not cite the May 2005 guidance when asked
what guidance was followed in evaluating the petition, so it is
unlikely that the finding was affected by the May 2005 guidance
document.
[GRAPHIC] [TIFF OMITTED] T2492.043
The Service Faces Challenges in Processing 90-Day Petitions in a Timely
Manner and in Responding to Court Decisions Issued Since 2004
While the May 2005 informal guidance did not have a substantive
effect on the Service's processing of 90-day petitions, the Service
still faces challenges in processing 90-day petitions in a timely
manner and in responding to court decisions issued since 2004. None of
the 90-day petition findings issued from 2005 through 2007 were issued
within the desired 90-day time frame. During this period, the median
processing time was 900 days, or about 2.5 years, with a range of 100
days to 5,545 days (more than 15 years). \23\ According to Service
officials, almost all of their ESA workload is driven by litigation.
Petitioners have brought a number of individual cases against the
Service for its failure to respond to their petitions in a timely
manner. This issue presents continuing challenges because the Service's
workload increased sharply in the summer of 2007, when it received two
petitions to list 475 and 206 species, respectively.
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\23\ Processing times were calculated as number of days from the
date the Service received the petition (or the date the petition was
written, if the date of receipt was unavailable) to the date the
associated finding was published in the Federal Register.
---------------------------------------------------------------------------
The Service is also facing several management challenges stemming
from a number of court decisions since 2004:
According to senior Service officials, the Service
currently has no official guidance on how to develop 90-day petition
findings, partially because of a 2004 court decision invalidating part
of the Service's 1996 Petition Management Guidance. The Service's
official 1996 Petition Management Guidance contained a controversial
provision that treated 90-day petitions as ``redundant'' if a species
had already been placed on the candidate list via the Service's
internal process. \24\ In 2004, a federal district court issued a
nationwide injunction striking down this portion of the guidance. \25\
Senior service officials stated that the Service rescinded use of the
document in response to this court ruling and began an iterative
process in 2004 to develop revised guidance on the 90-day petition
process. According to these officials, guidance was distributed in
piecemeal fashion, dealing with individual aspects of the process in
the form of e-mails, conference-call discussions, and various informal
guidance documents. Our survey respondents indicated that the lack of
official guidance created confusion and inefficiencies in processing
90-day petitions. Specifically, survey respondents were confused on
what types of additional information they could use to evaluate 90-day
petitions--whether they were limited to information in Service files,
or whether they could use information solicited from their professional
contacts to clarify or expand on issues raised in the petition. Several
survey respondents also stated that unclear and frequently changing
guidance resulted in longer processing times for 90-day petition
findings, which was frustrating because potentially endangered species
decline further as the Service determines whether they are worthy of
protection. Further complicating matters, 31 of the 44 biologists we
surveyed, or 70 percent, had never drafted a 90-day petition finding
before. According to a senior Service official, the Service is planning
to issue official guidance on how 90-day petition findings should be
developed to eliminate confusion and inconsistencies.
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\24\ Some of the 281 species on the candidate list have been
waiting for a proposed listing decision for more than a decade.
\25\ALA v. Norton, Civ. No. 00-2339, 2004 WL 3246687 at *3 (D.D.C.
June 2, 2004) (permanent nationwide injunction based on Gunnison sage
grouse). See also ALA v. Norton, 242 F. Supp. 2d 1, 18 (2003)
(declaring this aspect of the guidance to be invalid). The adequacy of
the guidance was also challenged in a 2001 decision, Center for
Biological Diversity v. Gale Norton, 254 F.3d 833, 838-40 (2001)
(holding that provisions of the guidance related to candidate species
violated the ESA).
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With regard to the use of outside information in
evaluating petitions, the Service must continue to adapt to a number of
court decisions dating back to 2004 holding that the Service should not
solicit information from outside sources in developing 90-day petition
findings. A December 2004 decision by the U.S. District Court for the
District of Colorado stated that the Service's ``consideration of
outside information and opinions provided by state and federal agencies
during the 90-day review was overinclusive of the type of information
the ESA contemplates to be reviewed at this stage....[and] those
petitions that are meritorious on their face should not be subject to
refutation by information and views provided by selected third parties
solicited by [the Service].'' \26\ Since then, several other courts
have reached similar conclusions. \27\ Despite the constancy of various
courts' holdings, 25 out of the 54 90-day petition findings in our
survey, or 46 percent, were based in part on information from outside
sources, according to Service biologists.
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\26\ Center for Biological Diversity v. Morganweck, 351 F. Supp. 2d
1137, 1143 (D. Colo. 2004).
\27\ Colorado River Cutthroat Trout, et al. v. Kempthorne, 448 F.
Supp. 2d 170 (2006); Western Watersheds Project v. Norton, Civ. No. 06-
127, 2007 WL 2827375 (D. Idaho Sept. 6, 2007) (pygmy rabbit); Center
for Biological Diversity v. Kempthorne, Civ. No. 07-0038, 2008 WL
6598322 (D. Ariz. March 6, 2008) (Sonoran desert population of bald
eagle). The Service's May 2005 informal guidance directed biologists to
use information in Service files or ``other information,'' which the
guidance did not elaborate on. The Service's November 2006 draft
guidance stated that biologists should identify and review ``readily
available information within Service files'' as part of evaluating
information contained in petitions. The biologists we surveyed
expressed confusion and lack of consensus on the meaning of the terms
``readily available'' and ``within Service files.'' Some Service
officials were concerned that if information solicited from outside
sources could not be considered in developing 90-day petition findings,
many more 90-day petitions would be approved and moved forward for in-
depth 12-month reviews, further straining the Service's limited
resources.
---------------------------------------------------------------------------
In addition, the Service must continue to adapt to a
number of court decisions since 2004 on whether it is imposing too high
a standard in evaluating 90-day petitions. This issue--essentially,
what level of evidence is required at the 90-day petition stage and how
this evidence should be evaluated--goes hand in hand with the issue of
using additional information outside of petitions in reaching ESA
decisions. In overturning three negative 90-day petition findings,
three recent court decisions in 2006 and 2007 have held, in part, that
the Service imposed too high a standard in evaluating the information
presented in the petitions. \28\ These court decisions have focused on
the meaning of key phrases in the ESA and federal regulations, such as
``substantial'' information, ``a reasonable person,'' and ``may be
warranted.'' In 2006, the U.S. District Court for the District of
Montana concluded that the threshold necessary to pass the 90-day
petition stage and move forward to a 12-month review was ``not high.''
\29\ Again, some Service officials are concerned that these recent
court decisions may lead to approval of more 90-day petitions, thus
moving them forward for in-depth 12-month reviews and straining the
Service's limited resources.
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\28\ Defenders of Wildlife v. Kempthorne, Civ. No. 05-99 (D. Mont.
Sept. 29, 2006) (wolverine); Center for Biological Diversity v.
Kempthorne, Civ. No. 06-04186, 2007 WL 163244 (N.D. Cal. Jan. 19, 2007)
(Siskiyou Mountains salamander and Scott Bar salamander); Western
Watersheds Project v. Norton, Civ. No. 06-127, 2007 WL 2827375 (D.
Idaho Sept. 6, 2007) (pygmy rabbit).
\29\ Defenders of Wildlife v. Kempthorne, Civ. No. 05-99, slip op.
at 20 (D. Mont. Sept. 29, 2006).
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Beyond these general challenges, the Service's 90-day petition
finding in a recent case involving the Sonoran Desert population of the
bald eagle has come under severe criticism by the U.S. District Court
for the District of Arizona. \30\ The court noted that Service
scientists were told in a conference call that headquarters and
regional Service officials had reached a ``policy call'' to deny the
90-day petition and that ``we need to support [that call].'' A
headquarters official made this statement even though the Service had
been unable to find information in its files refuting the petition and
even though at least some Service scientists had concluded that listing
may be warranted. The court stated that the Service participants in a
July 18, 2006, conference call appeared to have received ``marching
orders'' and were directed to find an analysis that fit a 90-day
finding that the Sonoran Desert population of the bald eagle did not
constitute a distinct population segment. The court stated that ``these
facts cause the Court to have no confidence in the objectivity of the
agency's decision-making process in its August 30, 2006, 90-day
finding.'' In contrast, in a September 2007 decision, the U.S. District
Court for the District of Idaho upheld the Service's ``not
substantial'' 90-day petition findings on the interior mountain quail
distinct population segment. \31\
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\30\ Center for Biological Diversity v. Kempthorne, Civ. No. 07-
0038, 2008 WL 659822 (D. Ariz. Mar. 6, 2008).
\31\ Western Watersheds Project v. Hall, Civ. No. 06-0073, 2007 WL
2790404 (D. Idaho Sept. 24, 2007).
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Recovery Criteria for Threatened and Endangered Species Were Generally
Met in Final Delisting Decisions but Not in Proposed Delisting
Decisions
Of the eight U.S. species delisted from 2000 through 2007 because
of recovery, the Service reported that recovery criteria were
completely met for five species and partially met for the remaining
three species. When the delistings were first proposed, however, the
respective recovery criteria for only two of the eight species had been
completely met. Although the ESA does not specifically require the
Service to meet recovery criteria before delisting a species, courts
have held that the Service must address the ESA's five threat factors
for listing/delisting, to the maximum extent practicable, in developing
recovery criteria. For each of the delisted species that we reviewed,
the Service determined that the five threat factors listed in the ESA
no longer posed a significant enough threat to the continued existence
of the species to warrant continued listing as threatened or
endangered.
Table 5 summarizes whether the recovery criteria for the eight
species delisted from 2000 through 2007 were partially or completely
met at the proposed rule stage and the final rule stage. At the
proposed rule stage, only two of the eight species had completely met
their respective recovery criteria; that fraction increased to five of
eight at the final rule stage. The period between the proposed rules
and the final rules ranged from less than 1 year for the gray wolf's
western Great Lakes distinct population segment to just over 8 years
for the bald eagle.
[GRAPHIC] [TIFF OMITTED] T2492.044
A federal district court prevented the delisting of the Sonoran
Desert population of the bald eagle, pending a 12-month status review
and lawful determination of its status as a distinct population
segment.
For the species where the criteria were not completely met before
final delisting, the Service indicated that the recovery criteria were
outdated or otherwise not feasible to achieve. For example, the
recovery plan for the Douglas County population of Columbian white-
tailed deer was originally developed in 1976 and later updated in 1983.
The recovery plan recommended maintaining a minimum population of 500
animals distributed in suitable, secure habitat within Oregon's Umpqua
Basin. The Service reported it was not feasible to demonstrate, without
considerable expense, that 500 specific deer live entirely within
secure lands managed for their benefit, for most deer move between
public and private lands. Even though this specific recovery criterion
was not met, the Service indicated that the species warranted delisting
because of the overall increase in its population and amount of secure
habitat.
The West Virginia northern flying squirrel, whose final delisting
decision was pending at the time of our review, offers an example of a
species proposed for delisting even though the recovery criteria have
not been met. The species was proposed for delisting on December 19,
2006. \32\ The squirrel's recovery plan was developed in 1990 and
amended in 2001 to incorporate guidelines for habitat identification
and management in the Monongahela National Forest, which supports
almost all of the squirrel's populations. The Service asserted that,
other than the 2001 amendment, the West Virginia northern flying
squirrel recovery plan is outdated and no longer actively used to guide
recovery. This was in part because the squirrel's known range at the
time of proposed delisting was much wider than the geographic recovery
areas designated in the recovery plan and because the recovery areas
have no formal or regulatory distinction. In support of its delisting
decision, the Service indicated that the squirrel population had
increased and that suitable habitat had been expanding. The Service
drew these conclusions largely on the basis of a 5-year review--an ESA-
mandated process to ensure the continued accuracy of a listing
classification--completed in 2006, and not on the basis of the
squirrel's 1990 recovery plan. The Service also reported that the
recovery plan's criteria did not specifically address the five threat
factors.
---------------------------------------------------------------------------
\32\71 Fed. Reg. 75924 (Dec. 19, 2006).
---------------------------------------------------------------------------
According to the Service, most recovery plan criteria have focused
on demographic parameters, such as population numbers, trends, and
distribution. While the Service acknowledges that these types of
criteria are valid and useful, it also cautions that, by themselves
they are not adequate for determining a species' status. The Service
reports that recovery can be accomplished via many paths and may be
achieved even if not all recovery criteria are fully met. A senior
Service official noted that the quality of recovery plans varies
considerably, and some criteria may be outdated. Furthermore, Service
officials also noted, recovery plans are fluid documents, and the
plan's respective criteria can be updated as new threat information
about a particular species becomes available.
While the ESA does not specifically require the Service to meet
recovery criteria before delisting a species, courts have held that it
must address each of the five threat factors to the maximum extent
practicable when developing recovery criteria. \33\ In a 2006 report,
we provided information on 107 randomly sampled recovery plans covering
about 200 species. \34\ Specifically, we found that only 5 of the 107
reviewed recovery plans included recovery criteria that addressed all
five threat factors. We recommended that in recovery planning guidance,
the Service include direction that all new and revised recovery plans
contain either recovery criteria to demonstrate consideration of all
five threat factors or a statement about why it is not practicable to
include such criteria. In January 2008, in response to our
recommendation, the Director of the Service issued a memorandum
requiring all new and revised recovery plans to include criteria
addressing each of the five threat factors.
---------------------------------------------------------------------------
\33\ See Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121
(D.D.C. 2001); Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C.
1995). In Defenders of Wildlife, the court remanded the recovery plan
to the Service to incorporate delisting criteria or to provide an
adequate explanation of why delisting criteria could not practicably be
incorporated. In Fund for Animals, the court remanded the plan back to
the Service for revision of the recovery criteria.
\34\ GAO, Endangered Species: Time and Costs Required to Recover
Species Are Largely Unknown, GAO-06-463R (Washington D.C.: Apr. 6,
2006). The random sample of 107 recovery plans included 99 recovery
plans (covering 192 species) for which the Service has either primary
responsibility or shared responsibility with the National Oceanic and
Atmospheric Administration's Fisheries Service, and 8 recovery plans
(covering 9 species) for which the National Oceanic and Atmospheric
Administration's Fisheries Service has primary responsibility.
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Concluding Observations
In conclusion, Mr. Chairman, questions remain about the extent to
which Interior officials other than Ms. MacDonald may have
inappropriately influenced ESA decisions and whether broader ESA
policies should be revisited. Under the original direction from
Interior's Deputy Secretary and the three selection criteria followed
by the Service, a variety of ESA decisions were excluded from the
selection process. Broadening the scope of the review might have
resulted in the selection of more decisions, but it is unclear to what
extent. The Service recognizes the need for official guidance on how
90-day petition findings should be developed to eliminate confusion and
inconsistencies. The guidance will need to reflect the Service's
implementation of recent court decisions on how far the Service can go
in collecting additional information to evaluate 90-day petitions and
reflect what standards should be applied to determine if a petition
presents ``substantial'' information. The need for clear guidance is
more urgent than ever with the Service's receipt in the summer of 2007
of two petitions to list 681 species.
Assuming successful implementation of the Service's January 2008
directive that recovery criteria be aligned with the five threat
factors in the ESA, we believe that future delistings will more likely
meet recovery criteria while also satisfying the ESA's delisting
requirements based on the five threat factors.
Agency Comments
We provided Interior with a draft of this testimony for review and
comment. However, no comments were provided in time for them to be
included as part of this testimony. Mr. Chairman, this completes my
prepared statement. I would be happy to respond to any questions you or
other members of the Committee may have at this time.
GAO Contacts and Staff Acknowledgments
For further information, please contact Robin M. Nazzaro at (202)
512-3841 or [email protected]. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this statement. Individuals making key contributions to this
testimony include Jeffery D. Malcolm, Assistant Director; Eric A.
Bachhuber; Mark A. Braza; Ellen W. Chu; Alyssa M. Hundrup; Richard P.
Johnson; Patricia M. McClure; and Laina M. Poon.
______
GAO Highlights
U.S. FISH AND WILDLIFE SERVICE
endangered species act decision making
Why GAO Did This Study
The Department of the Interior's (Interior) U.S. Fish and Wildlife
Service (Service) is generally required to use the best available
scientific information when making key decisions under the Endangered
Species Act (ESA). Controversy has surrounded whether former Deputy
Assistant Secretary Julie MacDonald may have inappropriately influenced
ESA decisions by basing decisions on political factors rather than
scientific data. Interior directed the Service to review ESA decisions
to determine which decisions may have been unduly influenced.
ESA actions include, among others, 90-day petition findings, 12-
month listing or delisting findings, and recovery planning. The Service
distributed informal guidance in May 2005 on the processing of 90-day
petitions. Recovery plans generally must include recovery criteria
that, when met, would result in the species being delisted.
GAO examined three separate issues: (1) what types of decisions, if
any, were excluded from the Service's review of decisions that may have
been inappropriately influenced; (2) to what extent the Service's May
2005 informal guidance affected 90-day petition findings; and (3) to
what extent the Service has, before delisting species, met recovery
criteria. GAO interviewed Service staff, surveyed Service biologists,
and reviewed delisting rules and recovery plans. Interior did not
provide comments in time for them to be included in this testimony.
What GAO Found
Several types of decisions were excluded from the Service's review
of decisions that may have been inappropriately influenced. Using the
following selection criteria, the Service identified eight ESA
decisions for potential revision: (1) whether Ms. MacDonald influenced
the decision directly, (2) was the scientific basis of the decision
compromised, and (3) did the decision significantly change and result
in a potentially negative impact on the species. The Service excluded
(1) decisions made by Interior officials other than Ms. MacDonald, (2)
policy decisions that limited the application of science, and (3)
decisions that were changed but not significantly or to the point of
negative impact on the species.
The Service's May 2005 informal guidance had no substantive effect
on 90-day petition findings. In May 2005, Service headquarters
distributed a guidance document via e-mail to endangered-species
biologists that could have been interpreted as instructing them to use
additional information collected to evaluate a 90-day petition only to
refute statements made therein. GAO's survey of 90-day petition
findings issued by the Service from 2005 through 2007 found that
biologists used additional information collected to evaluate petitions
to both support and refute claims made in the petitions, as applicable,
including during the 18-month period when the May 2005 informal
guidance was being used. However, GAO found that the Service faces
various other challenges in processing petitions, such as making
decisions within 90 days and adjusting to recent court decisions. None
of the 90-day petition findings issued from 2005 through 2007 were
issued within the desired 90-day time frame. During these years, the
median processing time was 900 days, or about 2.5 years, with a range
of 100 days to 5,545 days (over 15 years). Additionally, the Service
faces several challenges in responding to court decisions issued since
2004. For example, the Service has not yet developed new official
guidance on how to process 90-day petitions after the courts
invalidated a portion of the prior guidance.
Finally, of the eight species delisted because of recovery from
2000 through 2007, the Service determined that recovery criteria were
completely met for five species and partially met for the remaining
three species because some recovery criteria were outdated or otherwise
not feasible to achieve. When the delistings were first proposed,
however, only two of the eight species had completely met all their
respective recovery criteria. Although the ESA does not explicitly
require the Service to follow recovery plans when delisting species,
courts have held that the Service must address the ESA's listing/
delisting threat factors to the maximum extent practicable when
developing recovery criteria. In 2006, GAO reported that the Service's
recovery plans generally did not contain criteria specifying when a
species could be recovered and removed from the endangered species
list. Earlier this year, in response to GAO's recommendation, the
Service issued a directive requiring all new and revised recovery plans
to include criteria addressing each of the ESA's listing/delisting
threat factors.
______
Appendix I: Objectives, Scope, and Methodology
We are reporting on (1) what types of decisions, if any, were
excluded from the U.S. Pish and Wildlife Service's (Service) selection
process of Endangered Species Act (ESA) decisions that were potentially
inappropriately influenced; (2) the extent to which the Service's May
2005 informal guidance affected the Service's decisions on petitions to
list or delist species; and (3) the extent to which the Service
determined, before delisting, whether species met recovery criteria
outlined in recovery plans.
To address our first objective, we interviewed the Director of the
Service, all eight regional directors, and key regional staff. Also, we
conducted site visits, phone interviews, or both with ESA staff from
ten field offices in five regions that were actively engaged in ESA
decision making. Further, we reviewed documentation developed by
Service headquarters, regions, and field offices about the selection
process and the status of the Service's review. In addition, we
reviewed Service policies and procedures for making ESA decisions and
reviewed other species-specific information.
To address our second objective, we identified 67 90-day petition
findings issued by the Service from 2005 through 2007 and conducted
structured telephone interviews of current and former Service
biologists responsible for drafting 90-day petition findings issued in
that time frame. Of the 67, we excluded 13 petition findings from our
survey: 5 had been overturned by the courts or were being redone as a
result of a settlement agreement; 3 involved up-listing already
protected species from threatened to endangered; 2 involved ongoing
litigation; 2 involved species located outside the United States; and 1
involved a petition to revise a critical habitat designation for a
species that was already protected. In total, we surveyed 44 biologists
responsible for drafting 54 90-day petition findings. To identify the
lead author responsible for drafting the 90-day petition findings in
our survey, we contacted the field office supervisor at the office
where the petition finding was drafted. The field office supervisor
directed us to the biologist who was the lead author of the finding or,
if that person was not available, a supporting or supervising
biologist. Of the 44 biologists we surveyed, 39 were lead biologists in
drafting the finding, 3 were supervising biologists, and 2 were
supporting biologists. From February 1,2008, and February 6,2008, we
pretested the survey with 5 biologists from three regions between, and
We used their feedback to refine the survey. The five 90-day petition
findings we selected for the pretest were all published in 2004 to most
closely approximate, but not overlap with, our sample. They represented
a balance between listing and delisting petitions, substantial and not
substantial findings, and types of information used in evaluating the
petition as stated in the Federal Register notice. We conducted the
pretests through structured telephone interviews to ensure that (1) the
questions were clear and unambiguous, (2) terms were precise, and (3)
the questions were not sensitive and that the questions as phrased
could be candidly answered. A GAO survey specialist also independently
reviewed the questionnaire.
Our structured interview questions were designed to obtain
information about the process the Service uses in making 90-day
petition findings under the ESA and the types of information used to
draft each 90-day petition finding. Specifically, the structured
questions focused on information that was not cited or referred to in a
listing or delisting petition but was either internal to Service files
or obtained from sources outside the Service. 1 In each of
these categories, we asked whether the information was used to support,
refute, or raise new issues not cited in the petition.
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\1\ We defined information in Service files as information not
included or cited in the petition but used regularly over the course of
the lead biologists' work. We defined information external to Service
files as information not included or cited in the petition but
solicited from other entities or obtained through exhaustive literature
searches during the process of reviewing the petition.
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Table 6 summarizes the key questions we are reporting on that we
asked during the structured interviews. We also asked other questions
in the survey that we do not specifically report on; these questions do
not appear in the table below.
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Our survey results demonstrated in several ways that the May 2005
guidance did not have a substantive effect on the outcomes of 90-day
petition findings. First, Service biologists who chose not to use
information outside of petitions to support claims made in the
petitions said that Service policy had no influence on this choice.
Second, when asked what guidance they followed in drafting their 90-day
petition finding, very few respondents cited the May 2005 guidance,
indicating that although this guidance may have been followed to create
an internal agency outline, it did not have a substantive effect on the
finding itself. Third, in response to our concluding, open-ended
question, none of the biologists mentioned specific reservations about
the May 2005 guidance.
To address our third objective, we generated a list of all of the
Service's final delisting decisions published as rules in the Federal
Register (and corresponding proposed delisting rules) from calendar
years 2000 through 2007, to determine the number of species removed
from the list of threatened and endangered species by the Service. As
of December 31, 2007, the Service had issued final rules resulting in
the delisting of 17 species. Of those 17 delisted species, 2 species
were delisted because they had been declared extinct, 6 species were
delisted because the original data used to list the species were in
error, and 9 species were delisted as a result of recovery. Of the 9
recovered species, we excluded the Tinian monarch, a species located in
a U.S. territory, which reduced the number of species we looked at to 8
U.S. species delisted because of recovery. To examine whether the
Service met recovery criteria outlined in recovery plans before
delisting species, we obtained and reviewed the Service's recovery
plans for each of those 8 delisted species and also examined the
Federal Register proposed and final delisting rules. This information
indicated whether the Service believed that it had met the criteria
laid out in the recovery plans for the 8 delisted U.S. species.
Finally, we also reviewed the proposed rule to delist the West Virginia
northern flying squirrel; as of March 31, 2008, the Service had not
finalized this proposed rule.
We conducted this performance audit from August 2007 to May 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
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______
The Chairman. Mr. Laverty?
STATEMENT OF R. LYLE LAVERTY, ASSISTANT SECRETARY FOR FISH AND
WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR,
ACCOMPANIED BY REN LOHOEFENER, FISH AND WILDLIFE SERVICE, U.S.
DEPARTMENT OF INTERIOR, AND ED SHEPARD, BUREAU OF LAND
MANAGEMENT, U.S. DEPARTMENT OF INTERIOR
Mr. Laverty. Good morning, Mr. Chairman and Members of the
Committee. I am Lyle Laverty. I am the Assistant Secretary for
Fish, Wildlife and Parks for the Department of the Interior.
I want to thank you for this opportunity to share with you
the Department's recent actions relating to our implementation
of the Endangered Species Act. This is my first appearance
before you and your Committee since my confirmation as
Assistant Secretary, and it truly is an honor to be here in
front of you today.
Let me begin by mentioning our most recent listing
activity. As you know, Mr. Chairman, Secretary Kempthorne
announced last week that he accepted my recommendation of the
U.S. Fish and Wildlife Service Director Dale Hall's decision to
list the polar bear as a threatened species under the
Endangered Species Act.
This listing decision is based on the best available
science, which shows that the loss of sea ice threatens and
will continue to threaten the polar bear habitat. This loss of
habitat puts polar bears at risk of becoming endangered in the
foreseeable future, which is the standard established by the
Endangered Species Act for designating threatened species.
In making the decision, the Secretary also announced that
he was using the authority provided in Section 4[d] of the
Endangered Species Act to develop a rule that states if an
activity is permissible under the stricter standards
conservation regulatory requirements and standards imposed by
the Marine Mammal Protection Act, it is also permissible under
the Endangered Species Act with respect to the polar bear.
This rule, which we have issued as an interim final rule
which is effective immediately, will ensure the protection of
the bear while allowing for continued development of our
natural resources in the Arctic region in an environmentally
sound fashion.
While my nomination was pending with the U.S. Senate, this
Committee held several hearings. Because of the unique position
that I held at that time I was still an outsider, but by virtue
of the nature of the position to which I had been nominated I
was extremely interested in the issues that you were
discussing.
At that time I was fortunate to have both the time and the
opportunity to reflect on what I was hearing and reading and
what actions would in my mind address the problems and add real
value to the process. I determined it was important for me to
immediately set a firm tone on the issues of ethical behavior
and how policy and science should interact in the Department.
One of my commitments to both committees, and one of the
first actions I took after the nomination, was to meet with my
staff and the Department's ethics officer for a comprehensive
briefing on the Department's ethics standards. I also committed
to and have explained to my staff that any contacts they have
with field personnel either at the Fish and Wildlife Service or
the National Park Service regarding questions of science must
and will be through established organizational channels and
only with my prior approval.
I strive to ensure that everyone in my office treats
everyone else and is, in turn, treated with dignity and
respect. If there are questions of science, and there should
be, I expect those discussions to flow through the Director for
clarification.
As a natural resource professional, I understand the role
of science. I am committed to ensure the integrity of science
as the foundation for our resource decisions. I have met with
the Fish and Wildlife Service Director Dale Hall and Director
Mary Bomar and have affirmed my commitment to professional
behavior and personal code of conduct when it comes to the
interaction. I affirmed this again in my letters to Senator
Boxer and Senator Bingaman.
I believe in performance accountability, including my own.
I meet on a weekly basis with Director Hall to talk about
communication, staff interactions and performance, on my
feedback, on my performance, and the question am I doing what I
said I would do? I value those conversations.
I have read the GAO report regarding the Fish and Wildlife
Service endangered species decision making. I have discussed
the report with Fish and Wildlife staff and understand the
Service is currently implementing the recovery plan
recommendations. The 90-day petition finding guidance is under
review and incorporates and addresses the court decisions, as
well as recommendations to the GAO.
Director Hall has established a series of code of conducts
as it relates to professional organizations. He has shared that
with you.
I will move on, just very quickly, to give an update on the
discussion on decision review. The Service is moving ahead with
the review of the decisions that were overseen by the former
Deputy Assistant Secretary. The process for reviewing decisions
is established by the Service, and engaged resource
professionals in those assessments.
Let me highlight just a few points that Deputy Director Ken
Stansell shared with the Committee. It talked about the
conclusion and the revision to seven of the eight decisions
that should be made. There are actions underway to deal with
many of those issues. I can go into more detail in a minute
with you if you would like to do that.
In conclusion, I believe that the Department and the
Service have made great strides over this past year, ensuring
that our decision-making processes are clearly delineated, that
we maintain a strong emphasis on ethical conduct, and that we
are continuing our commitment to maintaining the integrity of
science used in the decision-making process.
I want to thank you for this opportunity to join you, and I
look forward to having a chance to answer any questions you
might have for me. Thank you.
[The prepared statement of Mr. Laverty follows:]
Statement of R. Lyle Laverty, Assistant Secretary for Fish and Wildlife
and Parks, U.S. Department of the Interior
Mr. Chairman and Members of the Committee, I am Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks at the Department
of the Interior. I thank you for the opportunity to share with you the
Department's recent actions relating to our implementation of the
Endangered Species Act. This is my first appearance before you and your
Committee since my confirmation as Assistant Secretary, and it is my
great pleasure to be here today.
I am accompanied today by Mr. Ren Lohoefener, Regional Director for
the U.S. Fish and Wildlife Service's Pacific Region, and Mr. Ed
Shepard, the Bureau of Land Management's Oregon State Director. These
gentlemen have made themselves available, at your request, to respond
to any questions that you or other Members of the Committee may have
about the spotted owl recovery plan and the Western Oregon Plan
Revisions.
Let me begin by mentioning our most recent listing activity. As you
know, Mr. Chairman, Secretary Kempthorne announced last week that he
accepted my recommendation of Fish and Wildlife Service Director Dale
Hall's decision to list the polar bear as a threatened species under
the Endangered Species Act. The listing is based on the best available
science, which shows that loss of sea ice threatens, and will likely
continue to threaten, polar bear habitat. This loss of habitat puts
polar bears at risk of becoming endangered in the foreseeable future,
the standard established by the ESA for designating a threatened
species.
In making the decision, the Secretary also announced that he was
using the authority provided in Section 4(d) of the ESA to develop a
rule that states that if an activity is permissible under the stricter
standards imposed by the Marine Mammal Protection Act, it is also
permissible under the Endangered Species Act with respect to the polar
bear. This rule, which we have issued as an interim final rule and
which is effective immediately, will ensure the protection of the bear
while allowing for continued development of our natural resources in
the arctic region in an environmentally sound way.
Past Hearings on ESA Implementation and Science
During the time my nomination was pending before the Senate last
year, this Committee held several hearings at which general
implementation of the ESA was discussed, and the Department's process
for reviewing ESA-related decisions and the use of science and policy
in that process were discussed in detail. At that time, both Deputy
Secretary Lynn Scarlett and Fish and Wildlife Service Director Dale
Hall affirmed that science is the cornerstone of the Service's work,
including our decision-making under the ESA, and reiterated the
Department's absolute commitment to the scientific integrity of that
process. We have taken many actions, both before and since, that I will
briefly discuss this morning.
I should begin by acknowledging that Secretary Kempthorne has,
since the time of his confirmation, placed a strong emphasis on ethical
conduct and scientific integrity as we carry out our work for the
American public. I know that throughout his career in public service,
the Secretary has exhibited, and continues to exhibit, a commitment to
the quality and integrity of science in the decision-making process.
He, along with Deputy Secretary Scarlett, has been effective in setting
a high standard in this regard.
As Director Hall noted before the Committee last July, both science
and policy have roles in the implementation of the ESA. Under the ESA,
the Service must use the best available science, be explicit about the
level of uncertainty in that science, and leave it to decision makers
to choose among available options that achieve the objectives of the
Act when making a decision. He also acknowledged that policy decisions
in critical habitat designations are appropriate in the section 4(b)(2)
exclusion process of the ESA, pursuant to which the Secretary must
weigh the benefits of exclusion against the benefits of inclusion, and
that
...the assimilation, application, and interpretation of science
often represent the beginning point in making policy decisions
under the ESA. The peer review process, agency leadership, and
the public comment process help to ensure high quality
decisions.
Recent Management Activities
As I mentioned above, the Committee's hearings were held last year
while my nomination was pending in the United States Senate. Because of
my unique position at the time, still an outsider but, by virtue of the
position to which I had been nominated, extremely interested in the
issues, I was fortunate to have both the time and opportunity to
reflect on what I was hearing and reading and what actions would, in my
mind, address the problems and add real value to the process.
I determined that it was important for me to immediately set a firm
tone on the issues of ethical behavior and how policy and science
should interact in the Department. One of my commitments, and one of
the first actions I took after confirmation, was to meet with my staff
and the Department's Ethics Officer for a comprehensive briefing on the
Department's ethics standards. I also committed to explaining, and have
explained, to my staff that any contacts they have with field personnel
at either the Fish and Wildlife Service or the National Park Service
regarding questions of science must and will be through established
organizational channels, and only with my prior approval. I documented
my commitment with a letter to all National Park Service and Fish and
Wildlife Service employees on my first day as Assistant Secretary. I
strive to ensure that everyone in my office treats everyone else and
is, in turn, treated with dignity and respect.
I have met with Fish and Wildlife Service Director Dale Hall and
National Park Service Director Mary Bomar and affirmed this commitment
to professional behavior and the personal code of conduct when it comes
to the interaction between career and political staff.
In a similar vein, in July of last year, Service Director Hall
appeared before you and presented his views on ESA implementation and
the various actions he had taken as Director to ensure that the Service
implements the ESA with the utmost scientific integrity. Several of
these important recent steps discussed at that hearing include:
1. the issuance, in February 2006, of a memorandum detailing the
Director's views on how science should be used in making
recommendations and decisions, as well as the process by which science
would be reviewed in a policy and legal context; and
2. clarification of the division of responsibilities for ESA
reviews and decisions between the Service and the Assistant Secretary's
Office, including that the formulation of science would be the
responsibility of the Service, while discussions between the Director's
office and Assistant Secretary's office would focus on policy decision-
making.
The Service also announced this past January that it is
implementing a code of scientific conduct, a series of guidelines
applicable not only to scientists, but to managers and executives
within the Service, including the Director. Moreover, while it applies
to scientific conduct, it extends to include the translation and
application of science used to inform resource management decisions.
The code is modeled on other codes developed and implemented by
professional organizations, such as The Wildlife Society and The
American Fisheries Society, and these organizations have praised this
effort as an important ingredient of organizational integrity. The code
is intended to provide uniform policies for Service employees to follow
as they conduct and manage scientific activities, with the utmost
regard for maintaining and enhancing the Service's reputation for
professionalism, integrity and objectivity.
All of these taken together serve as potent examples of the
seriousness with which Secretary Kempthorne, Deputy Secretary Scarlett,
and I, along with Director Hall and others in the Department, are
treating the issue of scientific integrity and the commitment we have
made to ensuring that our science-based decisions are made according to
the highest possible standards.
Update on Decision Reviews
Finally, let me provide you with a brief update on the Service's
progress on revision of the seven ESA decisions. The process for
reviewing decisions established by the Service was one of the subjects
discussed in detail by the Committee and Director Hall at the July 2007
hearing. For that reason, I will not go into detail on that process,
but will instead highlight the letter sent to you, Mr. Chairman, by the
Service's Deputy Director Kenneth Stansell in November 2007. That
letter forwarded the Service's conclusion that revisions to seven of
the eight decisions should be made and provided a small amount of
detail about each decision.
Currently, Mr. Chairman, work is on-going for four of the seven
decisions. In November 2007, the Service published a proposed rule to
revise the listing of the Preble's meadow jumping mouse, and the
Service expects to make a final listing determination by June 2008.
Work on the revision of the critical habitat designation for the
Preble's meadow jumping mouse will begin in June 2008, with a final
decision expected in June 2010. A proposed rule to revise designation
of critical habitat for the 12 Hawaiian picture-wing flies was also
published in November 2007 and a final critical habitat determination
is expected in November 2008. A proposed rule to revise critical
habitat for the Canada lynx was published in February 2008, and a final
critical habitat determination is expected in February 2009.
Work on the critical habitat for the arroyo toad and the finding
for the white-tailed prairie dog will begin in Fiscal Year 2009.
FWS has allocated approximately $1 million from Fiscal Year 2008
and identified $1.12 million from the Fiscal Year 2009 budget request
for the Endangered Species Program for work related to revising six of
the seven decisions under the ESA. Revision of the seventh decision,
involving the listed entity for the Preble's meadow jumping mouse, is
not included in the list above because the revision will be completed
in Fiscal Year 2008 and funding has come from the base allocation for
the recovery program from Fiscal Years 2007 and 2008 due to our
delisting proposal.
Conclusion
I believe the Department and the Service have made great strides
over the past year in ensuring that our ESA decision-making processes
are clearly delineated and that we maintain a strong emphasis on
ethical conduct and continue our commitment to maintaining the
integrity of the science used in the decision-making process. Again,
thank you and I am happy to answer any questions that you may have.
______
Response to questions submitted for the record by R. Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of
the Interior
Questions from Chairman Nick J. Rahall, II
Guidance for Listing Decisions
Question: GAO found (page 17) that 70 percent of the biologists
surveyed and who are responsible for determining whether a listing
petition is warranted have never drafted a petition finding. Biologists
responding to GAO's survey said frequently changing guidance resulted
in longer processing times, and delayed listing decisions. What are
your plans to issue official guidance to eliminate confusion and
inconsistencies in the determination of 90-day petition findings?
Response: A draft Director's memorandum providing interim guidance
on 90-day petition findings under the Endangered Species Act (ESA) is
currently under review within the U.S. Fish and Wildlife Service
(Service). We anticipate that a final Director's memorandum on this
guidance will be provided to the Regional and field offices by late
summer 2008.
Spotted Owl Recovery Plan
Question: When the spotted owl recovery plan was announced last
week, Members of Congressional staff were told that if peer review
supported changes, FWS would gladly re-do the recovery plan. Do you
plan to solicit peer review on the May 16 recovery plan? If peer
reviewers recommend changes, will you revise the plan?
Response: The Service is always amenable to expert review of its
recovery practices and will look to the recovery plan implementers for
advice on when adaptive management may be needed.
Recovery Plan for Jaguar
Question: In Jan 2008, Director Hall determined that a recovery
plan was not necessary because the bulk of the jaguar population
resides outside the United States. Yet, recovery plans were prepared
for a number of species with a significant portion of their range
outside the United States. As examples, recovery plans were prepared
for the Sonoran pronghorn, Yuma Clapper rail and New Mexico Ridge-nosed
Rattlesnake. The jaguar occurs from southern Arizona and New Mexico to
South America. Why was a recovery plan not prepared for the jaguar?
Response: The examples cited above are all species for which a
significant portion of the range and breeding populations of the
species do occur in the United States. Neither is true for the jaguar.
The ESA requires that recovery plans include objective and measurable
delisting criteria and an implementation schedule with estimated costs
and responsible parties which, when fully met and implemented, would
lead to a determination that the species be removed from the List. The
jaguar's range extends through the jurisdictions of approximately 20
countries from the United States border through Mexico, Central and
South America. The northern extreme of its range occurs in the southern
United States; this area represents less than one percent of the
jaguar's entire range.
Generally, the United States has little authority to implement
actions needed to recover species outside its borders. These powers are
limited to prohibiting unauthorized importation of listed species into
the United States, and prohibiting persons subject to United States
jurisdiction from engaging in commercial transportation or sale of
listed species in foreign commerce. The ``take'' prohibitions of
section 9 only apply within the United States, within the territorial
seas of the United States and on the high seas. They do not apply in
the foreign countries where nearly all jaguars are actually found.
Consequently, the management and recovery of listed foreign species
remain the responsibility of the countries in which the species occur,
with the help of available technical and monetary assistance from the
United States. In short, the Service believes that preparation of a
recovery plan for this largely international species will not promote
its conservation.
Question: Shouldn't this type of decision to exempt a species from
the requirement to prepare a recovery plan be one for which the Service
solicits public review and comment?
Response: Section 4(f)(1) of the ESA provides that the Secretary
shall develop a recovery plan ``unless he finds such a plan will not
promote the conservation of the species,'' and there is no statutory
requirement that the Secretary's finding be subject to public review
and comment.
Question: What is the statutory basis that the FWS relied upon in
denying full ESA protections to a species with a significant foreign
population?
Response: The Service has not denied full ESA protection to the
jaguar by its decision that preparation of a recovery plan would not
benefit the species. The jaguar is still fully protected by all
provisions of the ESA within U.S. borders.
Although we find that formal recovery planning at this time will
not promote the conservation of the jaguar, we intend to continue our
efforts to protect jaguars within our borders, and to work
cooperatively with our partners in northern Mexico in their efforts to
conduct research, protect habitat, and reduce killing of jaguars in
northern Mexico. Toward that end, we participate in the Jaguar
Conservation Team (JAGCT), a federal, state and private partnership
formed in 1997 to conserve the jaguar in the southwest United States
and northern Mexico.
Spotted Owl Recovery Plan
Question: Why is the FWS preparing a recovery plan for the northern
spotted owl? Haven't the courts said that the Northwest Forest Plan is
sufficient to protect the owl and a recovery plan is not necessary? Why
are you using resources on this effort anyway?
Response: According to the Endangered Species Act, the U.S. Fish
and Wildlife Service is required to prepare recovery plans for listed
species unless the Service determines that such a plan will not promote
the conservation of the listed species. Recovery plans must include a
description of site specific management actions and recovery criteria.
The Northwest Forest Plan, while describing important management
practices for the northern spotted owl, does not include the recovery
criteria or actions for the owl, as required in the ESA.
Question: Dr. Franklin also recommends that the Fish and Wildlife
Service use the late successional reserves as the core of the spotted
owl conservation area strategy, and supplement them with additional
designated conservation areas as necessary. He says the 133 owl
conservation areas identified in the plan are inadequate. Will you
consider his recommendation and revise the plan accordingly?
Response: According to the most recent northern spotted owl
population modeling, the conservation area design as described in the
Northern Spotted Owl Recovery Plan should, over the long term, be
sufficient to address the loss of habitat. In fact, the Managed Owl
Conservation Areas (MOCAs) on the west side of the Cascade Mountains,
added to the federal lands managed for northern spotted owls on the
east side of the Cascades, coupled with the additional Federal older
forests maintained over the next 10 years while we explore the threat
from barred owls, will equal or exceed the total amount of Late
Successional Reserves.
Delistings
Question: We understand that funds for delisting and recovery come
out of the same account and that the Service's priority is to use these
funds to delist species instead of focusing on recovery activities. Is
our understanding correct?
Response: The Service funds recovery activities using one sub-
activity account. Recovery activities include developing recovery
plans, implementing recovery actions, conducting 5-year status reviews,
and addressing delisting and downlisting petition findings. In
addition, we may use this funding to process species rules, such as
experimental population designations under section 10(j). When recovery
has been achieved for a species, we use this funding for regulatory
actions to delist the species and develop post-delisting monitoring
plans.
We do not prioritize our funding allocation for regulatory actions,
specifically delisting species. The bulk of our funding is allocated
out by a formula that considers the number of listed species and the
complexity of recovery implementation activities for those species. In
addition, approximately 5% of the total general funds, or roughly $3.5
million, is allocated to specific Service projects or actions through a
competitive proposal process. In FY08, we targeted, through this
proposal process, $2.5 million towards on-the-ground recovery actions
that either prevented extinction or funded recovery action that would
move the species towards recovery faster. Approximately $990,000 of the
$3.5 million allocated through the national competition was used to
fund the regulatory action for complicated or complex delisting or
downlisting actions. A portion of the $990,000 was also used to develop
post-delisting monitoring plans for the bald eagle and brown pelican.
Wolverine
Question: The Service's decision in March not to list the wolverine
in the lower 48 seems to be based on the reasoning that it is too
imperiled to be significant enough to warrant protection. Isn't that
conclusion completely at odds with the plain meaning and intent of the
ESA? Using this same reasoning how would wolves and grizzly bears
recover in the lower 48 under the ESA?
Response: The Service based our determination that the wolverine in
the lower 48 contiguous United States was not warranted for listing on
the following reasoning (see 73 FR 12929)
* The contiguous U.S. population of the wolverine did not meet the
discreteness criteria for a Distinct Population Segment under the
Service's 1996 policy. The international border could not be used to
delineate a U.S. DPS, because differences between the two countries
regarding control of exploitation, management of habitat, conservation
status, or regulatory mechanisms are not significant in light of
section 4(a)(1)(D) of the ESA.
* The contiguous U.S. population of the wolverine did not meet the
significance criteria for a Distinct Population Segment under the
Service's 1996 policy. The focus of the 12-month petition finding was
on the contribution of the contiguous U.S. population of the wolverine
to the North American subspecies as a whole. Only a small portion of
the North American wolverine subspecies has ever occurred in the
contiguous United States. The finding documented that the U.S.
population was not significant to the continued existence of the North
American subspecies in Canada and Alaska where it is faring reasonably
well.
Unlike the wolverine, the wolf and the grizzly bear both meet
discreteness criteria defined in the DPS Policy as ``delimited by
international governmental boundaries within which differences in
control of exploitation, management of habitat, conservation status, or
regulatory mechanisms exist that are significant in light of section
4(a)(1)(D) of the Act.'' Trapping and hunting regulations within the
contiguous United States were not sufficient to maintain persistence of
wolves and grizzly bears, which were reduced to low numbers at the time
they were listed under the ESA. In Canada and Alaska, wolves and
grizzly bears were also being trapped and hunted, but these activities
were not threatening the healthy populations that exist there.
Trapping and hunting of wolverines is legal only in Montana within
the contiguous United States, and this program is closely monitored.
Trapping and hunting do not pose a threat to the species; thus,
differences in control of exploitation that are significant in light of
section 4(a)(1)(D) did not exist to support the determination that the
wolverine in the contiguous United States qualifies as a DPS.
Gray Wolves
Question: How many wolves will have to be killed to trigger a
decision to relist the species?
Response: The Service identified four scenarios in the Northern
Rocky Mountain distinct population segment (NRM DPS) that could prompt
us to initiate a status review and analysis of threats to determine if
relisting would be warranted. These scenarios are: (1) if the wolf
population for any one state in the DPS (MT, ID, WY) range falls below
the minimum NRM wolf population recovery level of 10 breeding pairs of
wolves and 100 wolves; (2) if the wolf population segment in Montana,
Idaho, or Wyoming falls below 15 breeding pairs or 150 wolves in any
one of those states for 3 consecutive years; (3) if the wolf population
in Wyoming outside of National Park Service lands falls below 7
breeding pairs for 3 consecutive years; or, (4) if a change in state
law or management objectives would significantly increase the threat to
the wolf population.
Furthermore, if any of these scenarios occurred during the
mandatory 5-year post-delisting monitoring period, the post-delisting
monitoring period would be extended 5 additional years from that point
in that State.
The post-delisting monitoring plan for the Western Great Lakes
distinct population segment (WGL DPS) outlines three scenarios that may
cause the Service to consider relisting or emergency relisting the WGL
DPS. These scenarios are: (1) a decline that reduces the combined
Wisconsin-Michigan (excluding Isle Royale and the Lower Peninsula) late
winter wolf population estimate to 200 or fewer wolves; (2) a decline
that brings either the Wisconsin or the Michigan (excluding Isle Royale
and the Lower Peninsula) wolf estimate to 100 or fewer wolves; or, (3)
a decline that brings the Minnesota winter wolf population point
estimate or lower end of the 90% confidence interval to 1,500 or fewer
wolves.
Although the thresholds for initiating analyses for relisting are
based on population numbers, any determination to relist the gray wolf
would not be based solely on the number of wolves killed or even the
overall population level alone. The Endangered Species Act requires
that listing be based on the analyses of current and future threats to
the entity under consideration using the best scientific and commercial
data available. Our delisting analyses found that all threats to the
NRM DPS and the WGL DPS of the gray wolf have been removed. In the
past, the primary threat to wolves was deliberate and organized
persecution. Wolf populations are otherwise very resilient to human-
caused and other forms of mortality. On average, humans would have to
kill more than 30-50% of a wolf population each year to cause
population declines. Without the use of poisons (which are now banned)
and/or a government-sponsored eradication program, the Service believes
that, as a practical matter, it would be very difficult to kill enough
wolves for a long enough period of time to threaten the wolf population
and require relisting under the Endangered Species Act.
Before we could delist the WGL DPS and NRM DPS, each State with a
portion of a recovered wolf population had to commit in FWS-approved
wolf management plans to maintain their segment of the wolf population
so that the overall populations will remain well above recovery goal
levels. The States also committed to continue to monitor their wolf
population for the mandatory 5-year post-delisting monitoring period
and report results to the FWS.
In the NRM DPS, the three core States of Idaho, Montana, and
Wyoming committed in their wolf management plans to manage for at least
15 breeding pairs and 150 wolves each, which is 50% higher than the
minimum recovery goal level. The combined number of wolves that the
States indicated they will actually manage for is around 1,000, which
is more than triple the minimum recovery goal level. Currently, the NRM
DPS population is at about 1,500 adults and yearlings plus
approximately 500 pups born this spring.
In the WGL DPS, the three core States of Minnesota, Wisconsin, and
Michigan describe in their management plans the minimum number of
wolves each State will maintain. Minnesota's minimum statewide winter
population goal is 1,600 wolves. Wisconsin's minimum population goal is
350 wolves outside of Indian Reservations. Michigan's plan calls for a
minimum sustainable population of 200 wolves in the Upper Peninsula.
The numeric recovery goals were 1,251-1,400 for Minnesota and 100 for
the Wisconsin-Michigan population. Currently, the Minnesota population
is estimated at more than 3,000 wolves. Wisconsin's current estimate is
520-545 wolves outside Indian Reservations, and Michigan's estimate is
434 wolves.
Wolves in the contiguous United States outside the NRM DPS and WGL
DPS remain listed under the Endangered Species Act. The estimated 50-
60,000 wolves in Canada and 8-10,000 in Alaska are not listed.
Mexican Wolf
Question: Why has the Fish and Wildlife Service not revised the
recovery plan for the Mexican wolf?
Response: The Mexican gray wolf was listed as an endangered
subspecies on April 28, 1976 (41 FR 17736). On March 9, 1978, the
Service issued a final rule that eliminated individual subspecies on
the list and reclassified the entire species C. lupus as either
endangered or threatened in North America south of Canada (43 FR 9607).
However, the final rule stated that we would continue to recognize
valid biological subspecies for purposes of research and conservation
(43 FR 9610). The first (and only) Mexican Wolf Recovery Plan was
international in scope and was approved on September 15, 1982, by the
Director of the Service and the Director General of Mexico's Direccion
General de la Fauna Silvestre.
In April 2003, the Service reclassified the gray wolf, creating
three distinct population segments (DPS): the eastern, western, and
southwestern DPS (SWDPS) (68 FR 15804). Creation of the SWDPS provided
an opportunity to engage a full recovery planning effort and develop
delisting criteria for the gray wolf in the southwest, which included
the non-essential experimental population of Mexican wolves. The
Service convened the SWDPS Gray Wolf Recovery Team in October 2003. The
Recovery Team was nearing the end of the internal planning process in
February 2005 when an Oregon Federal Court ruled on litigation brought
by a coalition of environmental groups and enjoined and vacated the
2003 Reclassification Rule (Defenders of Wildlife v. Norton, 03-1348-
JO; National Wildlife Federation v. Norton, 1:03-CV-340, D. VT. 2005).
In response to these rulings, Region 2 put the SWDPS recovery team
on hold. The recovery team could not continue its work until legal
issues were resolved and thus we have not been able to complete a
formal revised recovery plan for the Mexican wolf.
As an interim measure, the Service is developing a conservation
assessment for the Mexican gray wolf. This assessment will draw upon
much of the information generated by the Recovery Team during their
initial preparation of the draft Mexican wolf recovery plan. The
conservation assessment will provide background information about the
species, describe current threats, and contain recommendations to
advance recovery through the wolf program. It will not contain
decisions about how many wolves are necessary to achieve recovery, nor
will it recommend specific geographic areas for expansion of Mexican
wolf recovery efforts. However, much of the information from the
conservation assessment could be utilized in a future recovery plan and
in preparing modifications to the rule.
In addition to the conservation assessment, the Service is
simultaneously updating the Mexican Wolf Environmental Impact
Statement. This process will provide broad public participation
opportunities and will allow us to use knowledge gained over the last
ten years to shape alternatives that address successful recovery
activities.
Question: In his testimony, Mr. Parsons on panel 2 states that we
are witnessing the extinction of the Mexican wolf. How will the DOI put
the wolf back on a track towards recovery?
Response: The Mexican wolf was extirpated from the United State by
the mid-twentieth century. Decades later, we better understand and
support the role that top predators play in balancing ecosystems. The
Service and its partners have established a group of primarily wild
born wolves that are breeding and reproducing in the Southwest and has
demonstrated substantial progress towards recovery. We continue to use
all available management options for increasing the number of wolves in
the 10(j) area. The population in New Mexico and Arizona has remained
near 50 wolves from 2003 to 2007.
Prior to the Service's 1998 initial release of wolves into the
10(j) area, the known wild population was zero. As a result of the
Service's wolf program, the existence of a stable experimental
population of wolves in the wild over the last several years makes it
clear that we are not witnessing the extinction of the Mexican wolves
as suggested by Mr. Parsons' testimony. The captive breeding program is
managed under a Species Survival Plan. There are currently close to 300
wolves in the captive population, and all of the wolves released into
the wild came from this captive population.
Question: How do you square the additional killing or permanent
removal of wolves allowed under Standard Operating Procedures 13 with
the ESA requirement that killing and permanent removal must not
preclude progress toward recovery?
Response: The Environmental Impact Statement (EIS) established for
the reintroduction of Mexican wolves into the Southwestern United
States stated: ``The FWS will permanently remove from the wild or, as a
last resort, euthanize any wolves exhibiting a consistent pattern of
livestock depredation (three or more confirmed kills--(page 2-16).''
The Service and its partners have set policy that is consistent
with the foundation documents of this project. Re-introduction of
wolves as an experimental 10(j) population with Standard Operating
Procedures (SOP) provisions are not in violation of the ESA and support
the goal of successful re-introduction by managing human/wolf
conflicts.
The primary reason for the extirpation of wolves from the Southwest
was lack of tolerance (both by the public and government agencies) of
wolves because of human/wolf conflicts. Active management of individual
wolves that kill cattle has been the management paradigm in the
Midwest, the Northern Rockies and the Southwest and clearly increases
tolerance for wolves by the local public. The Service believes that
other aspects within this project are more limiting relative to overall
recovery, including: (1) a single population of wolves rather than
multiple populations; (2) the recovery area's geographic limitations;
and, (3) the difficulties of establishing a wild population from
captive stock.
Our records show about half of all wolf removals (both permanent
and temporary) are due to livestock interactions. From 1998 through
2007, the Service's records show 34 wolves have been permanently
removed from the wild (11 lethally) and 108 were removed on a temporary
basis. The remainder of removals are based on other factors including
boundary violations, nuisance behavior and illegal shootings.
Temporarily removed wolves are eligible to be re-released into the
wild. This summer, New Mexico Department Game and Fish (NMDGF) will
transfer two adult Mexican wolves into the wild.
Moratorium on Take of Mexican Wolves
Question: Mexican wolf experts have called for a moratorium on
``take'' until an expert task force can be convened to provide
guidance? Do you agree with the experts?
Response: The Mexican Wolf Reintroduction Project is a cooperative
effort among the Service, Arizona Game and Fish Department (AZGFD),
NMDGF, U.S. Department of Agriculture--Wildlife Services, USDA Forest
Service, and the White Mountain Apache Tribe. In addition, many state
and federal agencies, counties, Native American Tribes, zoos, wildlife
sanctuaries, universities, and non-government organizations in both the
United States and Mexico have assisted in planning and implementing
recovery efforts for the Mexican wolf. We are fortunate to be able to
draw on the expertise of so many dedicated biologists with practical
experience and expertise in managing endangered species on the ground
in Arizona and New Mexico.
While the Service has removed one wolf and translocated wolves
within the 10(j) area in 2008, there have been no legal lethal takes
this year. We are also leading efforts to review and revise the
program's Standard Operating Procedures to provide us with a broader
scope of management options to help avoid future lethal removals.
Biologically, the reintroduction project is successful. We have
second generation wolves finding mates in the wild, establishing their
own packs, and taking down native prey. Forty-seven of the 52 wolves
(90%) documented in 2007 were wild born animals. However, the socio-
economic effects of reintroducing a top predator into cattle country
are a reality that must be factored into the equation. Wolf/livestock
conflict is one of the most challenging obstacles facing the Mexican
wolf reintroduction program. Resolution of this impediment will help
accommodate the recovery of the Mexican wolf.
When livestock conflicts occur, our preference is to work with the
livestock owner to help disrupt depredation behavior by hazing or other
non-lethal methods of discouraging wolves that are seeking cattle. If
that does not work, the non-essential experimental population rule
governing the reintroduction project allows for permanent removal as
one of the tools to resolve livestock depredation problems.
Wolf removals are not our preference as they can disrupt pack
behavior. In order to reduce the economic impacts of livestock
depredations by wolves, we have suggested a proactive Mexican Wolf/
Livestock interdiction fund. The fund would provide for interdiction,
incentives and compensation to effected ranchers. We believe that--when
fully implemented--the interdiction fund will provide a means to offset
the costs of losses due to wolf recovery to ranchers and allow the
Service to suspend wolf removals under SOP 13.
Red Knots
Question: When can we expect action to be taken on this year's
emergency listing petition for red knots?
Response: The Service has received four petitions to emergency list
the red knot. The most recent on February 27, 2008, requested that the
Service list the U.S. populations of two subspecies of the red knot
(Calidris canutus roselaari and Calidris canutus rufa) as endangered
and emergency list one of the subspecies of red knot (Calidris canutus
rufa). The Service responded to the petitioners in a letter dated May
1, 2008. In the letter the Service reiterated to the petitioners that
we had already made a determination that listing the red knot (Calidris
canutus rufa) is warranted but precluded by other listings of higher
priority and have added the subspecies to our list of candidates. We
annually determine whether listing remains warranted and precluded and
whether we need to utilize the emergency listing provisions of the ESA.
The Service is currently in the process of making the annual finding
for this subspecies and anticipates the review and reevaluation of our
previous finding will be completed by the end of this year. In the same
letter, we also stated that due to funding constraints, we are unable
to address the petition to list the red knot (Calidris canutus
roselaari) this year. Currently all of our listing and critical habitat
funding for Fiscal Year 2008 has been spent on court orders, settlement
agreements, and other statutory deadlines. We anticipate making an
initial finding in the Fiscal Year 2009 as to whether the petition
contains substantial information indicating the action may be
warranted.
Question: Notwithstanding the evidence pointing to the continued
decline of the species, the red knot was listed as a ``6'' on a
priority scale of 1 to 12 for candidate species. Why does the red knot
have such a low listing priority?
Response: The Service considers three factors when determining the
appropriate Listing Priority Number (LPN) for a species: (1) the
magnitude of threats; (2) the immediacy of threats; and (3) the
taxonomy of the species. Under the third factor, taxonomy, a monotypic
genus is afforded priority over a full species which is afforded
priority over a subspecies or distinct population segment. As a
subspecies of red knot, Calidris canutus rufa could potentially be
assigned an LPN of 3, 6, 9, or 12 only. As of last year, we had
determined the rufa subspecies had a high magnitude of threat due to
the modification of habitat through harvesting of horseshoe crabs to an
extent that put the viability of the red knot at substantial risk.
However, we determined the threats were non-imminent because of
reductions and restrictions on harvesting horseshoe crabs adopted by
the States in the Delaware Bay region. The red knot was therefore
assigned an LPN of 6; an LPN of 3, the only higher designation the
subspecies could potentially receive, would require both a high
magnitude and a high immediacy of threat.
Cactus Ferruginous Pygmy-Owl (Arizona Population)
Question: When can we expect the Service to make a finding on
whether the petition to list the Sonoran desert population of pygmy
owls is warranted?
Response: The Service announced on June 2, 2008, that the cactus
ferruginous pygmy-owl may warrant federal protection as a threatened or
endangered species under the Endangered Species Act. This decision
follows an initial review of a petition seeking to protect the pygmy-
owl by adding it to the federal list of endangered and threatened
wildlife. With this announcement, the Service has begun the 12-month
status review process.
White Nose Bat Syndrome
Question: Bats in New York, Connecticut and Vermont are apparently
affected by the white nosed bat syndrome. Scientists are concerned that
the syndrome could spread to other states, such as West Virginia and
Virginia where the endangered Indiana Bat lives. What is the agency
doing to address this growing problem?
Response: The Service is working closely with State agencies, the
U.S. Geological Survey, academic institutions, laboratories, and non-
government organizations to address the threat to bats posed by white-
nose syndrome (WNS). The Service is taking the following actions:
1. Facilitating information exchange, coordination, and
communication by hosting weekly conference calls with state and federal
agencies throughout the Northeast and Midwest, and maintaining a WNS
webpage to keep the public and media informed.
2. Developing containment and decontamination protocols for
researchers and cavers to reduce the risk of potentially accelerating
the spread of WNS.
3. Tracking surveyed sites for presence or absence of WNS to
monitor its apparent spread.
4. Mapping caver and biologist movements to investigate any
possible correlation with affected sites.
5. Addressing permitting requirements for listed species work.
6. Assisting with field work including collection of samples for
lab analysis and the counting and capture of live bats for monitoring
of population health in affected and unaffected regions.
7. Working with the states and labs to determine baseline
information needs in unaffected areas and to develop study designs.
8. Developing proposals for collaborative research projects and
assisting states in identifying and securing potential sources of
funding.
9. Helping to plan and organize a three-day working group meeting
of all state, federal, and private agencies, laboratories, and academic
institutions that have been involved with WNS investigations and
monitoring to date, to further our understanding of white-nose syndrome
and conserve important bat populations.
Piping Plover Critical Habitat
Question: Were you aware of the proposed Kenedy Ranch wind project
in Texas before you announced your plans to re-designate critical
habitat for piping plover along the Southeast Texas coast?
Response: Yes, we knew of proposals for two wind farms when we
received the July 2006 court order to vacate 19 existing units of
critical habitat for piping plover on the Texas coast and reconsider
them by May 2008.
Question: Has the Department or the Service discussed this proposal
with the project proponent or the State of Texas? If so, can you please
describe this consultation and the results?
Response: The project proponents considered and documented whether
their projects would affect endangered species and concluded that
piping plovers and their habitat do not occur in the wind farm project
areas, hence they have drawn the conclusion that piping plovers are not
anticipated to be affected. Since federal monies or permits are not
necessary for this project that is on private lands, the project
proponents are not required to consult with the Service on impacts to
endangered species.
Question: Does the Department intend to intercede with the State of
Texas to request that construction of this project not be permitted
until such time that additional piping plover critical habitat is
designated by the Service?
Response: We are unaware of any Departmental plans to intercede
with the State of Texas
Question: Should the Kenedy Ranch Project move forward as planned,
will the Department pursue enforcement of the Endangered Species Act
and Migratory Bird Treaty Act when illegal take of piping plover
occurs?
Response: Endangered Species Act and Migratory Bird Treaty Act
enforcement will occur as appropriate on all wind power projects,
including those planned for Kenedy County.
West Virginia Flying Squirrel
Question: What are the main threats to the West Virginia Northern
Flying Squirrel's habitat?
Response: The main threats that led to the listing of the WVNFS
were the rangewide clear cut logging of the red spruce-northern
hardwood forests and fires associated with the logging in the mid-
1800s. The red spruce forests have regenerated on their own and through
restoration efforts. As stated in our December 19, 2006, proposed
delisting rule, there is no current threat of clear cut logging within
the WVNFS habitat, nor is this threat likely to occur in the future.
The Service determined in the proposed rule that any threat to the West
Virginia northern flying squirrel's (WVNFS) habitat has been either
eliminated or largely abated.
Question: Have all the threats to the West Virginia Northern Flying
Squirrel's habitat been reduced? If the threats to West Virginia
Northern Flying Squirrel have not been reduced, why is the Fish and
Wildlife Service moving forward, especially when squirrel population
has not been measured?
Response: Yes, all threats have been eliminated or largely abated
such that the subspecies no longer meets the definition of threatened
or endangered under the Endangered Species Act.
Question: Why wasn't population taken into consideration in the
delisting proposal?
Response: The Service considered population dynamics when assessing
the status of the WVNFS using the best available scientific data. The
Service considers persistence to be the best indicator of successfully
reproducing populations for this subspecies. We define persistence as
continuing captures of WVNFS over multiple generations at previously
documented sites throughout the historical range. The Service has
analyzed 20+ years of presence/absence data to determine persistence of
WVNFS across its range, taking into consideration detectability rates,
life span, reproductive capacity, dispersal capability, linkages to
other populations, and the naturally patchy habitat distribution of the
subspecies. These data consistently indicate a relatively high degree
of persistence (roughly 80 percent) across the landscape, and are not
indicative of a declining population of WVNFS.
Questions from Rep. Peter A. DeFazio
Question: The peer reviews of the draft recovery plan, the SEI
review, and the members of the habitat working group for the final
plan, all concluded that all owl habitats should be protected,
regardless of their location. Why didn't the FWS follow this
recommendation? Upon what scientific studies is the decision to deviate
from the habitat working group's recommendation based?
Response: Input from the SEI report (2008) and the habitat work
group convened by the Service concerned occupied spotted owl habitat
and ``high-quality'' spotted owl habitat; these groups did not
recommend to the Service that ``all owl habitat'' be maintained. The
final recovery plan looks to the maintenance of ``substantially all of
the older and more structurally complex multi-layered conifer forests
on Federal lands outside of MOCAs'' (Recovery Action 32). Maintenance
of this higher-quality habitat (a subset of suitable habitat) was
recommended because: (1) these stands include occupied sites, (2)
costly and time-consuming pre-project surveys can be avoided, and (3)
chances are reduced of modifying sites either temporarily not occupied
by spotted owls or actually occupied by spotted owls but not detected
(due to presence of barred owls).
Question: Rangewide, only 55% of the MOCAs on the west side
actually contain owl habitat (p. 89). Given the scientific consensus to
protect all owl habitat everywhere, why aren't these ``reserves''
bigger? How can a species in decline survive--much less rebound and be
delisted with only 55% of a home, 55% of prey, and 55% of a mate?
Response: There was not scientific consensus to protect all owl
habitat everywhere. Input from the SEI report (2008) and the habitat
work group convened by the Service concerned occupied spotted owl
habitat and ``high-quality'' spotted owl habitat; these groups did not
recommend to the Service that ``all owl habitat'' be maintained.
Recovery Action 5 (page 20) states, ``Manage habitat-capable lands
within MOCAs to produce the highest amount and highest quality spotted
owl habitat the lands are capable of producing.'' The final plan
recommends that lands within the MOCAs that may become suitable habitat
should be managed to do so. In Table C6 (starting on page 85), the
percentage of habitat-capable lands within the MOCAs are listed in the
column titled ``Percent (capable of total)''. The percentages are
generally above 90 percent.
Question: Can you name any other species for which FWS has proposed
reducing existing habitat protections while the species population is
declining?
Response: Since recovery plans are guidance documents, the Service
does not believe that the northern spotted owl recovery plan reduces
existing protections.
Question: The MOCAs are based on the reserves proposed in 1990 by
the ISC, and by the 1992 recovery plan. However, since then, scientists
(including Dr. Franklin) have concluded that those reserves are not big
enough or contain enough habitat to help the owl, and that there should
be more of them. Why aren't the MOCAs bigger and contain more habitat?
Response: According to the most recent northern spotted owl
population modeling, the conservation area design as described in the
Northern Spotted Owl Recovery Plan will address the loss of habitat. In
fact, the MOCAs on the west side of the Cascade Mountains, added to the
federal lands managed for northern spotted owls on the east side of the
Cascades, coupled with the additional Federal older forests maintained
over the next 10 years while we explore the threat from barred owls,
will equal or exceed the total amount of Late Successional Reserves.
Question: You spoke of ``acceptable risk'' in managing for the owl.
What about the risk of litigation for a recovery plan that doesn't pass
scientific mustard? What about the risk of region wide injunctions?
What about the risk of more controversy in my district and state? Do
these things figure into your calculus of ``risk''?
Response: The Service is charged with using the best available
information to create a recovery plan designed to recover the owl and
incorporate the stakeholders. The Northern Spotted Owl Recovery Plan
represents such a document.
Question: According to the final recovery plan, the MOCA strategy
is based on ``Option 7'' of the ten options discussed in the FEMAT
report, which provided the scientific foundation for the Northwest
Forest Plan (Final Recovery Plan, 74). FEMAT states that ``all options
except option 7 incorporate the Scientific Analysis Team (Thomas et.
al. 1993) approach to late successional and riparian forest management
(which enhances both connectivity between reserve areas and increases
the acreage of late successional and old-growth forest available to
northern spotted owls)'' (FEMAT, 11-31). Option 7 had the second lowest
likelihood of leading to a recovered and well-distributed NSO
population. Why is the final recovery plan based on the only option
considered by FEMAT that wasn't based on the best available science?
Why is Option 7 any better today than it was in 1993?
Response: The recovery plan uses the most recent science available.
Recent spotted owl population modeling using the latest techniques and
demographic information indicates the size (MOCA 1s are to support 20
or more pair, and MOCA 2s to support 1-19 pair) and spacing (no more
than 12 miles apart for MOCA 1s and no more than 7 miles apart) of the
MOCAs is expected to provide for a recovery level of occupancy over 100
years. In fact, the MOCAs on the west side of the Cascade Mountains,
added to the federal lands managed for northern spotted owls on the
east side of the Cascades, coupled with the additional Federal older
forests maintained over the next 10 years while we explore the threat
from barred owls, will equal or exceed the total amount of Late
Successional Reserves.
In addition, the Plan identifies a landscape approach to spotted
owl habitat conservation on the fire-prone eastern side of the species'
range that was strongly recommended by leading spotted owl and fire
experts.
In theses three Provinces, Eastern Washington Cascades, Eastern
Oregon Cascades, and the California Cascades, the goal is to maintain
an ecologically sustainable environment in which spotted owls can
persist. Spatially dynamic spotted owl habitat patches will be
identified by a work group after the plan is completed. These habitat
patches are expected to move around as they are affected by natural
disturbances, such as fire or insect damage. The entire area outside of
the habitat patches will be managed to restore ecological processes and
functions and to reduce the potential for significant losses by stand-
replacement fires, insects and disease. All areas outside of habitat
patches will be actively managed to reduce risks to spotted owl
habitat, through such actions as fuels treatments and maintenance of
large, fire-resistant trees.
The recovery plan's goal is to maintain 30 to 35 percent of the dry
forest habitat-capable area in each eastside province for spotted owl
habitat, which totals more than 900,000 acres. Added to the acres of
MOCAs, about 7.35 million acres would be managed for spotted owl
habitat.
Further, the plan looks to federal land managers to maintain older,
complex forests on federal lands west of the Cascade crest to benefit
spotted owls, and identifies almost 2.4 million acres of non-Federal
lands as Conservation Support Areas, which are meant to provide
demographic support to the MOCAs.
Question: What is the difference between the habitat conservation
strategy you have proposed and the ineffective strategies of the early
1990s that lead to the owl's listing?
Response: It is unclear what strategies are being referenced. The
Service is charged with using the best available information to create
a plan that it believes is capable of recovering the owl. The Northern
Spotted Owl Recovery Plan is the first finalized recovery plan for the
owl and will be implemented in concert with all willing partners.
Question: Are the MOCAs stationary? The draft recovery plan created
MOCAs based on a ``rule set'' that the USFS and BLM could use to
delineate the reserves. I'd like clarification on whether that rule set
was carried forward into the final plan, or if FWS has drawn these
lines on a map.
Response: The MOCAs are stationary and their boundaries are
displayed in the maps provided in Appendix D of the Recovery Plan
(pages 93-95).
Question: How does the FWS define ``high quality habitat''? Is this
the same as ``nesting, roosting, and foraging'' habitat, or something
else?
Response: ``High-quality habitat'' is defined on page 10 of the
Recovery Plan as, ``Older, multi-layered structurally complex forests
that are characterized as having large diameter trees, high amounts of
canopy cover, and decadence components such as broken-topped live
trees, mistletoe, cavities, large snags, and fallen trees. This is a
subset of suitable habitat.'' Nesting, roosting and foraging habitat is
defined differently (page 9) as, ``Suitable habitat that provides
nesting, roosting and foraging opportunities for spotted owls.
Important stand elements are high canopy with larger overstory trees
and a presence of broken-topped trees or other nesting platforms (e.g.,
mistletoe clumps). Some suitable habitat may have limited nesting
opportunities, but still provide foraging opportunities.'' All high-
quality habitat is nesting, roosting or foraging habitat, but all
nesting, roosting and foraging habitat is not necessarily high-quality
habitat.
Question: The recovery plan states ``the recovery plan specifies
the spotted owl habitat goals for the MOCAs but defers the actual
management of those acres to the expertise of the land management
agencies'' (Final Recovery Plan Appendix F, Response to Comments).
Since the FWS is the ``expert'' when it comes to the spotted owl, why
is the agency leaving the actual management requirements up to the USFS
and BLM to determine?
Response: While the Service is the federal agency with expertise in
northern spotted owl biology, the Forest Service and the BLM are
experts in managing federal forests. Recovery plans are guidance
documents that are meant to establish the recovery criteria, goals, and
recommended actions for achieving recovery. Recovery Action 5 (page 20)
states, ``Manage habitat-capable lands within MOCAs to produce the
highest amount and highest quality spotted owl habitat the lands are
capable of producing.'' In other words, all the lands within the MOCAs
that may become suitable habitat should be managed to do so. The
Service believes the land management agencies, in technical
consultation with the Service, have the most expertise on how best to
actually implement this recovery action.
Question: The recovery plan states that the MOCAs on BLM land in
southern Oregon ``coincide with the proposed Late Successional
Management Areas (LSMAs) in the BLM's preferred alternative for its
WOPR'' and that ``the best approach for spotted owl recovery now
appears to be maintain the MOCAs on BLM land and to implement a
landscape-management approach on U.S. Forest Service land, but this
discussion requires further analysis'' (Final Recovery Plan, 24). What
does this mean? Is it possible that there will be no reserves in
southern Oregon?
Response: Input from the SEI report (2008) and the fire work group
convened by the Service clearly indicated that the Klamath Provinces in
Oregon and California should ultimately be managed in a manner similar
to the east-side landscape approach. However, specific design of such
an approach needs more work. On Page 25, the Recovery Plan states,
``The first task of the [Dry-Forest Landscape] Work Group will be to
review the interim strategy for the Klamath Provinces and make
recommendations for a final strategy there. The review should entail:
1. inclusion of appropriate scientists, Federal agencies, and
interested parties as appropriate...''
Question: The recovery planning process for the owl has been highly
controversial in the past, and has continued today. Given the
controversy surrounding the draft plan, do you expect to take
scientific peer review of the final plan? What will you do if that
review is negative? Will you revise the plan immediately? If you do
revise the recovery plan, how might that revision affect ongoing
management actions (timber sales, WOPR, etc.) that tier to the recovery
plan?
Response: Consistent with our established policy (see 59 FR 34270),
the Service conducted peer review of the draft recovery plan and we
made adjustments to the final plan in response to comments that we
received. While no further Service-instigated peer review of this plan
is anticipated in the near future, we could modify the Northern Spotted
Owl Recovery Plan if the implementation advisors believe sufficient
information exists to warrant an adaptive management modification.
Question: I support landscape restoration efforts, both east and
west of the Cascade crest. The final recovery plan calls for large-
scale thinning east of the crest, which is something I could support.
However, the recovery plan does not specify what these treatments will
look like. Who will decide what those forest treatments will be, and
will there be any independent review of those prescriptions?
Response: Recovery Action 9 (page 25) calls for the establishment
of an interagency Dry-Forest Landscape Work Group that will be
responsible for making recommendations on how to best accomplish the
goals of the Recovery Plan in those areas. We anticipate this group
will be interdisciplinary and will include researchers, biologists,
silviculturists, planners and managers, among other expertise. Projects
implemented by the land management agencies will be evaluated for NEPA
clearance.
Question: How will you determine whether the spotted owl population
is responding to the recovery plan? Will you use habitat models, or
``hoot for owls''?
Response: Spotted owl population monitoring is currently conducted
through a statistically rigorous, extensive sampling program. Anthony
et al., 2006, Status and Trends in Demography of Northern Spotted Owls,
1985-2003, Wildlife Monographs. There are 13 long-term demographic
study areas (DSAs) across the range of the spotted owl that constitute
the sampling process. These DSAs are large and cover much of the owl's
geographic range including a variety of landownership (but mostly
federal) and management strategies. The monitoring program provides the
general trend of the species representative of most owl populations on
federal lands, not the total population of the species. Once the DSAs
indicate the status of the species is improving toward stability a more
extensive monitoring effort may be desired for at least 10 years to
determine if Recovery Criterion 1 is met, i.e., ``The population trend
of spotted owls is stable or increasing over 10 years of monitoring.''
Question: If you are relying on habitat models to determine whether
the species is progressing towards recovery, why are you doing so,
given that peer reviewers have concluded are not accurate, and do not
provide enough information to accurately determine the health of the
owl population? What science supports your habitat model approach, for
the spotted owl?
Response: The Service is relying on the results of the demographic
monitoring program to determine the species' progress. Habitat
maintenance (as part of the MOCA strategy, the high-quality habitat
provision and the dry-forest landscape approach) represents only one
part of the recovery strategy.
Question: How does the FWS plan to get an aggressive ``hoot and
shoot'' plan for the barred owl through the NEPA and ESA consultation
process?
Response: Recovery Action 29 (p. 31) calls for the design and
implementation of large-scale control experiments to ``assess the
effects of barred owl removal on spotted owl site occupancy,
reproduction, and survival.'' If the results are favorable, we may
decide to pursue further control efforts. For the initial control
experiment, we anticipate conducting a rigorous NEPA process, with full
public review, and conducting an intra-Service consultation on this
recovery action.
Question: Is the draft EIS for WOPR consistent with the final
recovery plan?
Response: The Western Oregon Plan Revision (WOPR) Draft
Environmental Impact Statement (DEIS) was based on, and is consistent
with, the 2007 Draft Recovery Plan, however, the Bureau of Land
Management is working to make the final WOPR consistent with the final
recovery plan released in May 2008. The Service has worked closely with
the Bureau of Land Management and other federal land management
agencies to discuss what is needed to recover the spotted owl.
Question: The final recovery plan is expressly predicated on the
implementation of the Northwest Forest Plan (Final Recovery Plan, 7).
Yet, the BLM is proposing to eliminate LSRs and substantially reduce
Riparian Reserves in its WOPR. How will this affect the assumptions and
conclusions in the recovery plan?
Response: Where possible and where it made biological sense, MOCAs
were overlaid on Northwest Forest Plan reserves because of their
management over the past 14 years. However, the MOCA system, the
retention of high quality habitat and the dry-forest landscape approach
are all intended to function independently from the Northwest Forest
Plan.
Question: Who is going to conduct the monitoring required by the
recovery plan? How will it be paid for?
Response: The current demographic monitoring program is supported
by the BLM, Forest Service and, to a more limited extent, the National
Park Service. We anticipate these three agencies, in cooperation with
the Service, and perhaps the states on state land will continue to fund
the monitoring program.
Question: What can we expect from FWS in terms of NSO critical
habitat, which I understand will be out in early June?
Response: Except for the areas east of the Cascades, the Service
intends to designate a critical habitat network that is consistent with
the Recovery Plan. However, critical habitat requires mapped units and
is not flexible in recognizing landscapes that naturally change. The
Recovery Plan does not recommend static conservation areas in the dry-
forest landscape. Consequently, the critical habitat strategy for the
eastside uses the areas identified in the 2007 draft of the Recovery
Plan as necessary for recovery.
Question: Please submit for the record maps of the NSO provinces
overlaying (a) FS and BLM land ownership; (b) Designated Conservation
Areas as identified in the 1992 draft recovery plan; (c) LSRs as
described in the Northwest Forest Plan; and (d) MOCAs under the 2008
recovery plan.
Response: The requested materials are attached.
[GRAPHIC] [TIFF OMITTED] T2492.068
[GRAPHIC] [TIFF OMITTED] T2492.069
[GRAPHIC] [TIFF OMITTED] T2492.070
______
Response to questions submitted for the record by Ed Shepard, Bureau of
Land Management, U.S. Department of the Interior
1. The draft EIS for the WOPR was based on the draft recovery plan,
both of which were roundly criticized, including by its own
scientists. Now that the recovery plan has been finalized, how
will the BLM respond? Will the BLM be ``maintaining
substantially all high quality habitat'' outside of MOCAs, and
managing the remaining land to produce the highest amount and
highest quality habitat that those lands are capable of
producing? Does that include not logging old growth, which BLM
earlier proposed to log under WOPR?
The BLM is still in the planning process, and I cannot predetermine
the final decisions that will be the outcome of that process. However,
I can tell you that the BLM has worked closely with the U.S. Fish and
Wildlife Service (FWS) during the development of the Final Northern
Spotted Owl Recovery Plan and BLM's Proposed Western Oregon Plan
Revisions (WOPR). The BLM released the draft Environmental Impact
Statement (EIS) in August 2007 and is continuing to work with the FWS
to make the final EIS consistent with the Recovery Plan. The BLM's
close collaboration with the FWS will continue as the Recovery Plan
undergoes adaptive management in the future.
2. One of the key assumptions of the recovery plan is that ``existing
habitat conservation strategies (e.g., the NWFP) would be in
place'' (Final Recovery Plan, 7). But WOPR would eliminate the
LSRs in southern Oregon (still an area of concern due to past
management and the checkerboard), and drastically reduce the
Riparian Reserves. What does this mean for the assumptions and
conclusions of the final recovery plan? How will the BLM
respond?
The BLM is still in the planning process, and I cannot predetermine
the final decisions that will be the outcome of that process. The
quoted text, ``existing habitat conservation strategies (e.g., the
NWFP) would be in place'' is a baseline assumption made by a panel of
seven experts for use in a Delphi process at a meeting held on June 1,
2006, not a key assumption. The final Recovery Plan does not recommend
maintaining the Northwest Forest Plan (NWFP) late successional reserve
network for any province. The Recovery Plan for southern Oregon
includes the following statement:
``This Plan recommends implementation of a MOCA network for the
Klamath Provinces, but it will be considered an interim
strategy until such time another strategy is adopted. A change
to a non-MOCA landscape approach, at least on the Forest
Service lands, is expected following the work of the Dry-Forest
Landscape Work Group (discussed below).
The MOCAs in the Klamath Provinces in Oregon and California
coincide with the proposed Late Successional Management Areas
(LSMAs) in the BLM's preferred alternative for its Western
Oregon Plan Revision and with U.S. Forest Service LSRs. There
is a significant difference in land ownership patterns between
the BLM and U.S. Forest Service in this area (i.e., much of the
BLM owned land is in a checkerboard pattern, while the Forest
Service administers large contiguous blocks of land). BLM's
checkerboard land ownership means the agency generally does not
manage more than 50 percent of the land in a given area, so its
approach to fire management and spotted owl recovery may differ
from that of the U.S. Forest Service. The best approach for
spotted owl recovery now appears to be to maintain the MOCAs on
BLM land and to implement a landscape-management approach on
U.S. Forest Service land, but this discussion requires further
analysis.'' (Page 24)
The final Recovery Plan makes no recommendation for the width of
riparian management areas. The only reference to riparian management
areas is found on page 19. It notes ``While there is uncertainty
regarding the forest conditions required for spotted owl dispersal, it
is assumed dispersal success is better when the habitat between the
blocks more closely resembles suitable habitat. Land use allocations
such as visual corridors, riparian management zones, unstable soil
areas, and special management areas for other species that support
higher-quality spotted owl habitat embedded in a landscape of forest
lands managed for timber production should facilitate dispersal of
spotted owls.''
3. It seems to me that the BLM is going to have to make extensive
revisions to the draft EIS for WOPR, in light of the recovery
plan, spotted owl critical habitat due out any day now, and the
BLM's own internal science review of WOPR. Would you like more
time to make these revisions?
The BLM has been working closely with the FWS on the Western Oregon
Plan Revisions and the Recovery Plan. Because of this close
coordination, we expect to issue a Record of Decision for the current
Western Oregon Plan Revisions planning process by the end of 2008.
______
The Chairman. Ms. Luxton?
STATEMENT OF JANE LUXTON, GENERAL COUNSEL, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE
Ms. Luxton. Thank you, Chairman Rahall and Members of the
Committee, for the opportunity to discuss the proposed rule to
implement speed restrictions to reduce the threat of ship
collisions with North Atlantic right whales.
The North Atlantic right whale is one of the most
critically endangered large whale species in the world. The
latest NOAA peer reviewed stock assessment indicates that a
minimum of 313 individuals were estimated to have existed in
2002. The minimum population size has likely hovered near 3,000
[sic] individuals for several decades, having increased from
perhaps fewer than 100 individuals by 1935 when international
protection for right whales came into effect.
From 1995 to 2002, the period when estimates are available,
the minimum number of right whales alive has fluctuated from
284 in 1995, to 313 in 2002. These numbers indicate that this
population remains at risk. Collisions with marine vessels,
which we call ship strikes, are of the greatest known human-
related causes of right whale deaths and serious injuries.
To address this threat, NOAA, in collaboration with other
agencies and stakeholders, developed a right whale ship strike
reduction program, which includes rulemaking to reduce ship
speeds in areas where right whales occur. NOAA described the
program in an advanced notice of public rulemaking, which we
call ANPRs, in June 2004. After considering comments on the
ANPR and consulting with other affected agencies, NOAA
published a proposed ship speed restriction rule on June 26,
2006.
The proposed rule would impose a ship speed limit of 10
knots on commercial vessels 65 feet and greater in overall
length, which are subject to the jurisdiction of the United
States. The proposed rule also sought comments on 12 and 14
knot speed limits. For reasons I will explain in a moment, U.S.
vessels owned or operated by, or under contract to, the Federal
government would be exempt from this speed restriction.
The proposed restrictions would apply in specific marine
areas and certain port entrances along the East Coast of the
United States, imposing seasonal speed limits only in parts of
designated regions that correspond to right whale feeding,
migration and nursery/calving areas, and high vessel density.
The areas designated were confined as much as possible to
reduce economic impact to the shipping industry and the ports.
The proposed rule also includes speed restrictions that are
triggered in dynamic management areas where NOAA determines
there is concentration of three or more right whales, or there
are one or more right whales in a designated shipping lane.
NOAA's proposed rule exempted Federal vessels, as I
mentioned before, based on a determination that national
security and navigational and human safety missions of some
agencies may be compromised by a mandatory speed limit. NOAA
further noted such an exemption would not relieve Federal
agencies of their obligations to protect endangered right
whales under the Endangered Species Act, including Section 7.
In conjunction with this rule, NOAA also completed a draft
environmental impact statement analyzing six alternatives. The
EIS included an economic analysis of the rule. NOAA accepted
written comments on the proposed regulation and the draft
environmental impact statement, and held several public
hearings in Jacksonville, Baltimore and Boston during 2006.
NOAA received more than 10,000 comments on the proposed
rule from the following groups: State and Federal agencies;
shipping industry and cruise lines; ports, pilots, marinas and
longshoremen; whale watch and passenger ferries; recreational
fishing sector; environmental groups; members of environmental
groups; and individuals.
Comments focused on the data available, speed restrictions,
area covered by the rulemaking, economic impacts and safety
concerns. Of the comments, more than 9,700 were some type of
form response.
After considering all public comments on the proposed rule
and consulting other affected Federal agencies, NOAA drafted a
final rule and transmitted it to the Office of Management and
Budget on February 20, 2007, in accordance with Executive Order
12866. At present, NOAA's final rule is under interagency
review.
NOAA has also taken steps to reduce ship strikes through
vessel routing measures. The United States prepared and
submitted to the International Maritime Organization a proposal
to reconfigure the traffic separation scheme that services
Boston, Massachusetts. The IMO reviewed and adopted the
proposal, and the realignment was implemented in July 2007.
NOAA has also addressed the threat of large whale
entanglement in fishing gear, another serious problem for right
whales. On October 5, 2007, NOAA issued a final rule to amend
the regulations implementing the Atlantic Large Whale Take
Reduction Plan. This final rule revises the management measures
for reducing the incidental mortality and serious injury to the
northern right whale, also humpback whales and fin whales in
commercial fisheries, to meet the goals of the Marine Mammal
Protection Act and Endangered Species Act.
Thank you again, Mr. Chairman, for the opportunity to
testify. I am happy to respond to any questions.
[The prepared statement of Ms. Luxton follows:]
Statement of Jane Luxton, National Oceanic and Atmospheric
Administration, U.S. Department of Commerce
Good morning, I am Jane Luxton, from the National Oceanic and
Atmospheric Administration (NOAA). Thank you, Chairman Rahall, and
members of the Committee for the opportunity to discuss the proposed
rule to implement speed restrictions to reduce the threat of ship
collisions with North Atlantic right whales.
The North Atlantic right whale (Eubalaena glacialis) is one of the
most critically endangered large whale species in the world; the latest
NOAA peer-reviewed stock assessment indicates that a minimum of 313
individuals were estimated to have existed in 2002. The minimum
population size has likely hovered near 300 individuals for several
decades, having increased from perhaps fewer than 100 individuals by
1935, when international protection for right whales came into effect.
From 1995 to 2002 (the period when estimates are available) the minimum
number of right whales alive has fluctuated from 284 individuals in
1995 to 313 individuals in 2002. These numbers indicate that this
population remains at risk. Collisions with marine vessels (``ship
strikes'') are one of the greatest known human-related causes of right
whale deaths and serious injuries.
To address this threat, NOAA, in collaboration with other agencies
and stakeholders, developed a right whale ship strike reduction
program, which includes rulemaking to reduce ship speeds in areas where
right whales occur. NOAA described the program in an Advanced Notice of
Public Rulemaking (ANPR; 69 Fed. Reg. 30,857) on June 1, 2004. After
considering comments on its ANPR and consulting with other affected
agencies, NOAA published a proposed ship speed restriction rule on June
26, 2006 (71 Fed. Reg. 36,299).
The proposed rule would impose a ship speed limit of 10 knots on
commercial vessels 65 ft and greater in overall length, which are
subject to the jurisdiction of the United States. The proposed rule
also sought comments on 12 and 14 knot speed limits. For reasons I will
explain in a moment, U.S. vessels owned or operated by, or under
contract to, the Federal Government would be exempt from this speed
restriction. The proposed restrictions would apply in specific marine
areas and certain port entrances along the East Coast of the United
States, imposing seasonal speed limits only in parts of designated
regions that correspond to right whale feeding, migration, and nursery/
calving areas and high vessel density. The areas designated were
confined as much as possible to reduce economic impact to the shipping
industry. The proposed rule also includes speed restrictions that are
triggered in ``Dynamic Management Areas'' where NOAA determines there
is a concentration of three or more right whales or there are one or
more right whales in a designated shipping lane. NOAA's proposed rule
exempted federal vessels based on a determination that national
security and navigational and human safety missions of some agencies
may be compromised by a mandatory speed limit. NOAA further noted that
such an exemption would not relieve federal agencies of their
obligations to protect endangered right whales under the Endangered
Species Act, including Section 7.
In conjunction with this rule, NOAA also completed a draft
Environmental Impact Statement (EIS) analyzing six alternatives. The
EIS included an economic analysis of the rule. NOAA announced the
availability of the draft EIS on July 7, 2006 (71 Fed. Reg. 38,640).
NOAA accepted written comments on the proposed regulation and the draft
EIS, and held several public hearings in Jacksonville, Baltimore, and
Boston during 2006.
NOAA received more than 10,000 comments on the proposed rule from
the following groups:
state or federal agencies
shipping industry and cruise lines
ports, pilots, marinas, and longshoremen
whale watch and passenger ferries
recreational fishing sector
environmental groups
members of environmental groups
individuals
Comments focused on the data available, speed restrictions, area
covered by the rulemaking, economic impacts, and safety concerns. Of
the comments, more than 9,700 were some type of form response.
After considering all public comments on the proposed rule and
consulting other affected agencies, NOAA drafted a final rule and
transmitted it to the Office of Management and Budget (OMB) on February
20, 2007, in accordance with Executive Order 12866. At present, NOAA's
final rule is under interagency review.
NOAA has also taken steps to reduce ship strikes through vessel
routing measures. The United States prepared and submitted to the
International Maritime Organization (IMO) a proposal to reconfigure the
``Traffic Separation Scheme'' that services Boston, Massachusetts. The
proposed realignment is expected to provide a significant reduction in
ship strike risk to right whales and all baleen whale species occurring
in the area, with minimal concurrent impact to mariners. The IMO
reviewed and adopted the proposal, and the realignment was implemented
in July 2007.
NOAA has also addressed the threat of large whale entanglement in
fishing gear. On October 5, 2007, NOAA issued a final rule (72 FR
57104) to amend the regulations implementing the Atlantic Large Whale
Take Reduction Plan. This final rule revises the management measures
for reducing the incidental mortality and serious injury to the
Northern right whale (Eubalaena glacialis), humpback whale (Megaptera
novaeangliae), and fin whale (Balaenoptera physalus) in commercial
fisheries to meet the goals of the Marine Mammal Protection Act and the
Endangered Species Act.
Thank you again, Mr. Chairman, for the opportunity to testify. I am
happy to respond to any questions.
______
Response to questions submitted for the record by Jane Luxton
Cabinet Level Decision
We understand that the ship strike rule has been discussed in
Department meetings and could be the subject of a cabinet
meeting. This is reminiscent of the rarely invoked God Squad
provision where cabinet members meet to decide whether a
proposed agency action should go forward notwithstanding the
likelihood that species may go extinct.
How are we not to conclude that the delay in issuing the regulation to
protect the right whale is anything more than another example
of this Administration's politicization of a scientific
decision?
The process for publishing the ship speed reduction rule has been
similar to the process for other rulemakings under the Endangered
Species Act (ESA). It is also the same process that NOAA goes through
under other mandates such as the Magnuson-Stevens Act and the Marine
Mammal Protection Act.
It began with an Advance Notice of Proposed Rulemaking, followed by
a public comment period during which time the agency conducted public
meetings up and down the East coast. NOAA then filed a notice of intent
to prepare a draft environmental impact statement and had additional
public meetings as required by the National Environmental Policy Act
(NEPA). Next, following interagency review coordinated by the Office of
Management and Budget (OMB), as required by Executing Order 12866, NOAA
published a Proposed Rule and a notice of availability for the draft
environmental impact statement. Public comments were accepted again as
required by NEPA and the Administrative Procedure Act. Following this,
NOAA developed a final rule and final environmental impact statement.
All three rulemaking documents were sent to the OMB for interagency
review, as required by Executive Order 12866.
Under Executive Order 12866, which has been in effect since the
Clinton Administration, OMB is notified of all proposed federal
rulemaking actions and coordinates the interagency review of all rules
that are deemed to be significant. Rules are ``significant'' if they
may have $100 million or more in annual economic effect, interfere with
or are inconsistent with actions taken or planned by another agency, or
raise novel legal or policy issues. This rulemaking has an economic
impact exceeding $100 million, and thus is considered significant;
therefore OMB has been coordinating the interagency review process.
Vice President's Interest
Why is the Vice President's office interested in the ship strike rule?
Scientific issues were not seen as important when OMB reviewed
the proposed rule. What has changed?
This rule is based on peer-reviewed science. The interagency review
process set forth in Executive Order 12866 will help ensure that the
Final Rule achieves its regulatory objective in the most cost-effective
manner, based on ``the best scientific, technical, economic and other
information,'' and taking into account the views of other agencies and
members of the public. The rulemaking process is meant to support
robust interagency dialogue on all of these issues.
Delay of Rule
What is the scientific justification for further delays in the
proposed rule?
The interagency review process set forth in Executive Order 12866
will help ensure the Final Rule achieves its regulatory objective as
effectively as possible, based on ``the best scientific, technical,
economic and other information,'' and taking into account the views of
other agencies and members of the public. The rulemaking process is
meant to support robust interagency dialogue on all of these issues.
$100 million Cost
We understand that the rule could cost international shipping
interests $100 million which is significant, even if the amount
represents only .1 percent of annual receipts for international
shippers. It is my understanding that the Chamber of Shipping
of America, which primarily represents American companies, is
willing to accept the rule. Yet, the World Shipping Council
representing international interests opposes the regulation.
Why is the Administration giving more credence to the concerns of the
World Shipping Council than to the Chamber of Shipping of
America, if American companies are willing to do what it takes
to protect the whale?
In conjunction with this rule, NOAA conducted numerous public
meetings and held several rounds of discussions with the shipping
community and other stakeholders to describe the content and purpose of
the ship strike reduction proposals.
NOAA received more than 10,000 comments on the proposed rule from
the following groups:
state or federal agencies
shipping industry and cruise lines
ports, pilots, marinas, and longshoremen
whale watch and passenger ferries
recreational fishing sector
environmental groups
members of environmental groups
individuals
Comments from all stakeholders were considered in drafting the
Final Rule.
Deadlines
Why has the White House in reviewing the right whale regulation missed
the deadlines in Executive Order 12866?
Rules are ``significant'' if they may have $100 million or more in
economic implications, interfere with or are inconsistent with actions
taken or planned by another agency, or raise novel legal or policy
issues. This rulemaking is considered significant under Executive Order
12866 and involves complex issues that have generated substantial
public comment. OMB is taking the time needed to coordinate the
interagency review process.
______
The Chairman. Thank you all for your testimony. I
appreciate it.
Let me begin by asking Ms. Nazzaro, based on your work, do
you believe there are ESA decisions that were inappropriately
influenced by Interior officials other than Ms. MacDonald?
Ms. Nazzaro. Through the course of our work, we did
identify that had the Agency broadened their criteria--they
used three criteria--primarily were the decisions influenced by
Ms. MacDonald, was the scientific basis of that decision
compromised and did the decision significantly change or result
in a negative impact? Had they broadened that criteria, yes,
they would have identified other decisions for possible
revision.
The Chairman. And who?
Ms. Nazzaro. It might be more important for me to identify
titles. I don't know if the names will mean as much as to
identify so that you could get a sense of where in the
organization they possibly would be.
The Chairman. That would be a good start.
Ms. Nazzaro. But one would be the Special Assistant to the
Assistant Secretary. Another would be--I don't have his title.
One was a former Assistant Secretary, and the other was a
Deputy Assistant Secretary. Another was Chief of Staff, so we
identified a number of individuals.
The Chairman. Can you name names?
Ms. Nazzaro. I could.
The Chairman. Please.
Ms. Nazzaro. OK. The Special Assistant to the Assistant
Secretary was Randall Bowman. We found that there were five
decisions that he affected. Another would be Judge Craig
Manson; he was a former Assistant Secretary. We found three ESA
decisions that he impacted. Third, the Deputy Assistant
Secretary was Todd Willens. He affected one decision. And Brian
Waidmann, who was Chief of Staff, was not mentioned in
connection with a particular species, but his name appeared in
various sources as also reviewing decision packages and
generally supporting decisions that Julie MacDonald made.
Now again, this was through our conversations and reviews
of studies. We are not saying it is an exhaustive list, but we
have an indication that had they broadened it, there could have
been others.
The Chairman. You mentioned Brian Waidmann. Is he still
Chief of Staff to the Secretary, Mr. Kempthorne?
Mr. Laverty. Yes, sir, he is.
The Chairman. He is still holding the title ``Chief of
Staff.'' And you feel he may have inappropriately influenced
ESA decisions?
Ms. Nazzaro. From the sources that we reviewed, sir, we
found that he frequently reviewed ESA decision packages and
generally supported decisions that Julie MacDonald made.
The Chairman. Thank you.
Let me ask Ms. Luxton a question. Please do not take this
in the wrong way. I recognize that you are not the witness whom
we had requested to be with us today. The Agency instead put
you up, so this is in no way a reflection upon you or your
abilities, and therefore I will keep the question very simple.
It only will require a ``yes'' or a ``no.''
Has the White House interfered in any way on the right
whale issue? Yes or no?
Ms. Luxton. I am really not in a position to answer that
question. I mean, the interagency review process is, I think,
what you may be referring to, and that is a part of the typical
review process that goes on with any significant rule, and this
is classified as a significant rule.
The Chairman. Do you have any knowledge of any White House
involvement?
Ms. Luxton. Well, in the typical interagency process, there
is always a review by all interested parts of the Federal
government, and that process is going on now. This is an
ongoing rulemaking, and that is the normal process.
The Chairman. Are you aware of any involvement of the
Council of Economic Advisors?
Ms. Luxton. Again, all parts of the Federal government are
part of the interagency review, all that are interested in this
particular rule, so it is a broad group, just as NOAA is
involved in interagency reviews when other Agency questions
come up that have a NOAA aspect of interest to the Agency.
The Chairman. And why is it taking so long for this rule to
get out?
Ms. Luxton. I agree. This rule has taken longer than we
would have liked it to take. It is a significant rule.
As I mentioned, we received 10,000 comments on this rule,
and it involves a great many aspects of vessel safety and
maneuverability, economics, scientific issues, technical
issues, and all of them are part of the extensive comments we
received and the discussions that need to be had to make sure
we produce the best rule possible.
The Chairman. OK. Let me ask Assistant Secretary Laverty.
You heard my opening remarks and the GAO testimony that the
American people expect more from their government, yet at the
Interior Department, it appears lessons learned are still being
lost. The Fish and Wildlife Service bungled its review of the
Julie MacDonald decisions. Politics is still trumping science.
Your testimony not withstanding, I would like your response
to what GAO has reported and to wit: ``Questions remain about
the extent to which Interior officials other than Ms. MacDonald
may have inappropriately influenced ESA decisions and whether
broader ESA policies should be revisited.'' Your comments,
please?
Mr. Laverty. Yes, Mr. Chairman. I am not aware specifically
of the specific references in the report as it relates to these
outside of Ms. MacDonald. I would be happy to follow up on
that.
I can tell you right now that the integrity of the science
and the process is absolutely clear, and I can assure you that
decisions that are being made by Fish and Wildlife Service are
based on the integrity of science, and that there are no
changes taking place in science.
The Chairman. Let me ask you what we just heard from the
previous witness, Ms. Nazzaro, about the Secretary's Chief of
Staff, Mr. Waidmann, is involved in this decision-making
process. Do you have a comment on that?
Mr. Laverty. I am not aware of what his involvement would
be. I think, as a normal course of review, the Chief of Staff
does review decisions, but I am not sure what effect it would
have had in previous ones.
I have had conversations with him on actions that we are
taking, but I don't find those to be changing decisions.
The Chairman. All right. I recognize the acting Ranking
Member from Nebraska.
Mr. Smith. Thank you, Mr. Chairman and Members. Certainly,
I am a relatively new Member to this Committee, and it is very
interesting the more information that I receive.
I am a bit curious, Ms. Nazzaro. What is the process? For
example, Julie MacDonald or Mr. Waidmann--folks like this whose
names are mentioned in hearings such as this--do you interview
them as part of your investigation?
Ms. Nazzaro. We did not interview these individuals. Our
methodology, as I mentioned earlier, we had talked with
Director Hall. We also talked to the eight regional directors.
We also went to 10 field offices in five different regions,
focusing on those field offices that had the majority of the
listing and delisting activities, as well as to provide
geographic coverage.
Mr. Smith. And so, is there any opportunity given to these
individuals for rebuttal before their names are mentioned in a
setting such as this?
Ms. Nazzaro. We are not making an accusation. We are saying
they potentially inappropriately influenced it. We did not
research to what extent they have influenced it or what the
outcomes were.
The question asked was to what extent were other
individuals potentially influencing decisions, and we just felt
that the scope of the study that the Agency engaged in was a
rather narrow scope just looking at Ms. MacDonald.
We understand the allegations that were made regarding her,
and we understand why they chose to do that as a first step. We
are just saying, if they had broadened it, they may have come
up with others.
Mr. Smith. But the emphasis would be on the potential you
mentioned?
Ms. Nazzaro. Correct. Correct. I mean, these came through
conversations. We also reviewed studies, such as studies by the
Union of Concerned Scientists and others of that nature.
Mr. Smith. But these individuals have not been interviewed
by GAO?
Ms. Nazzaro. Correct.
Mr. Smith. Thank you.
The Chairman. Would the gentleman yield, very quickly, on
that?
Mr. Smith. Sure.
The Chairman. Did you also have access, as part of your
methodology, to memos?
Ms. Nazzaro. Yes.
The Chairman. Thank you.
Ms. Nazzaro. Emails, documents, Agency documents. Yes. We
had a quite extensive record of where these individuals' names
were mentioned numerous times.
Mr. Smith. Sure. Well, I appreciate that. You know, we have
a job to do here, and you do as well, and I appreciate your
service to the public as with anyone here in the room. I mean,
there are many responsibilities that all of us have.
I have been sifting through some paperwork here, and I
would like to submit for the record a rebuttal from Ms.
MacDonald for the record.
The Chairman. Without objection. It will be made part of
the record.
[The letter submitted for the record by Ms. MacDonald
follows:]
Julie A. MacDonald
MacDonald Consulting
Phone: 202-333-0844
June 2, 2008
Mr. Gene Dodaro
Acting Comptroller General
Government Accountability Office
441 G. St., NW
Washington, DC 20548
Dear Mr. Dodaro;
The purpose of this letter is to correct several inaccuracies in
GAO's report on Endangered Species Act Decision-Making, GAO-08-688T. In
addition to the report, these inaccuracies--both general and specific
in nature--were also included in GAO's testimony before the House
Resource Committee on May 21, 2008. Sadly, most of the errors could
have been avoided had the author reviewed the source documents and
interviewed the primary subjects of the report.
The report misstates the requirements of the Act and is also
misleading with respect to the duties of the Fish and Wildlife Service
and the Department of the Interior. With an almost unbelievable lack of
thoroughness, the authors clearly failed to even read the text of the
Endangered Species Act. This is a particularly egregious omission,
since its provisions form the basis of the entire decision-making
process which is the subject of the report. In addition, the authors
apparently neglected to perform even the most cursory review of the
source documents comprising the record. All the emails and comments
regarding the referenced regulatory documents are readily available and
a matter of public record. Further, a letter rebutting the specific
claims made in the referenced Inspector General's Report was made
available to 8 senior staff at the Department. Despite the fact that
the rebuttal was referenced publicly in a House Resource Committee
hearing in July of 2007, the GAO ignored the information, choosing
instead to perpetuate the IG's mischaracterizations. Finally, the GAO
never bothered to contact either me or the other officials whose
activities are referenced in the body of the report.
Apparently, the GAO prefers to draw the conclusions in its reports
untrammeled by the facts. Attached is a rebuttal of the specific claims
included in the report. I presume based on the GAO's mission and core
values, that the errors and unsubstantiated accusations will be
corrected by your office. To fail to do so will indelibly mark the
Office with the taint of partisanship carelessness, and disregard for
the law and facts.
Sincerely,
Julie A. MacDonald
______
DETAILED CORRECTIONS TO
``ENDANGERED SPECIES ACT DECISION-MAKING''
GAO REPORT-08-688T
June 2, 2008
The report is written to support a conclusion that science was
'inappropriately' influenced. The artifice used to support the
conclusion has several components, which include:
Mischaracterization of the requirements of the Endangered
Species Act;;
Confusion of the role of the Assistant Secretary's
Office;
Misstatement of the role of the Fish and Wildlife
Service;
Mischaracterization of legitimate quality control
activities of the Assistant Secretary's Office;
Omission of readily available facts
The approach used by GAO is cynical and contrary to its mission,
which is to provide Congress information that is objective, fact-based,
nonpartisan, nonideological, fair, and balanced \1\. Instead, the GAO
has delivered a document to Congress that could hardly have been more
misleading or inaccurate. Further, the approach used in developing the
report is contrary to the core values of GAO, which states all facts
and analyses in our work are thoroughly checked for accuracy \2\. As
the following paragraphs will demonstrate, facts were not checked, or
even considered, and analyses were completed in a context that did not
reflect the requirements of the law.
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\1\ GAO Mission Statement; http://www.gao.gov/about/index.html
\2\ GAO Core Values; http://www.gao.gov/about/index.html
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Mischaracterization of the requirements of the Endangered
Species Act \3\
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\3\ http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=browse_usc&docid=Cite:+16USC1533
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The ESA provides for 3 major regulatory activities, listing,
designation of critical habitat and consultation on discretionary
federal activities. All of the regulatory activities rely on one
standard, the best scientific and commercial data available.
In the summary, GAO characterizes the standard used for ESA
decisions as the 'best available scientific information': \4\
---------------------------------------------------------------------------
\4\ With respect to listing determinations the Act states:
(b) Basis for determinations
(1)(A) The Secretary shall make determinations required by
subsection (a) (1) of this section solely on the basis of the best
scientific and commercial data available to him...
With respect to critical habitat designations the Act states.
(2) The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) of this section on the basis
of the best scientific data available and after taking into
consideration the economic impact, the impact on national security, and
any other relevant impact, of specifying any particular area as
critical habitat. The Secretary may exclude any area from critical
habitat if he determines that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless he determines, based on the best scientific and commercial data
available, that the failure to designate such area as critical habitat
will result in the extinction of the species concerned.
With respect to biological opinions the Act states:
(2) Each Federal agency shall, in consultation with and with
the assistance of the Secretary, insure that any action authorized,
funded, or carried out by such agency (hereinafter in this section
referred to as an ``agency action'') is not likely to jeopardize the
continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of habitat of such
species which is determined by the Secretary, after consultation as
appropriate with affected States, to be critical, unless such agency
has been granted an exemption for such action by the Committee pursuant
to subsection (h) of this section. In fulfilling the requirements of
this paragraph each agency shall use the best scientific and commercial
data available.
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`The Department of the Interior's (Interior) U.S. Fish and
Wildlife Service (Service) is generally required to use toe
best available scientific information when making key decisions
under the Endangered Species Act (ESA).'
Then on page 1, GAO repeats the error;
Generally, Interior and the Service are required to use the
best available scientific information when making key ESA
decisions.
And again several times on page 9, where oddly, GAO characterizes
one out of six activities as most activities...
`In most cases, ESA decisions must be based at least in part on
the best available scientific information (see table 1).'
`...some ESA decisions are both ``peer reviewed'' and reviewed
internally to help ensure that they are based on the best
available science...'
And again on page 8 of the House staff briefing materials:
`Many ESA decisions must be based, at least in part, on the
best available scientific information'.
However, Table 1 of the GAO Report, found on page 8, recognizes
that only one activity has a standard based on the less rigorous
standard of 'information' as opposed to data, and that is the 90-day
petition finding, which has no regulatory effect. No scientific
standards are imposed on Recovery Plans.
There are only two possible explanations for the repeated errors on
this score. Either the GAO never examined the requirements of the
statutes or the GAO deliberately ignored the contents of the statute
and chose to mischaracterize its requirements. Neither explanation is
consistent with the mission or core values of the GAO.
Confusion Of The Role Of The Assistant Secretary's Office
By statute the Assistant Secretary's Office supervises the Director
of the Fish and Wildlife Service. Yet, in characterizing the activities
of the Office as 'inappropriate' the GAO report implies that the
supervisory authority exercised by the office was not authorized by
law.
Of the activities undertaken by that office, what exactly was
inappropriate?
Requiring that statements in rulemakings were supported
by data, which is a requirement of the Act?
Requiring that citations of scientific literature be
accurate?
Requiring that comment letters from states and the public
be read and considered?
Requiring that the language in final rules was internally
consistent and fully explained the basis for decisions?
Perhaps GAO finds that the exercise of the explicit
authority given to the Secretary to exclude lands from critical habitat
was inappropriate?
The above listed activities, which the GAO is characterizing as
'inappropriate', were conducted by the Office of Assistant Secretary
Manson. These activities were clearly authorized in law and in fact
were exercised in fulfillment of the statutory responsibilities of the
Office. To the extent that final rules were influenced by these
activities, the influence was consistent with the requirements of the
Act and due to the fact that the rules did not originally meet those
standards.
By using the term 'inappropriate decision making' the GAO neatly
sidesteps the fact that the decisions were well within the Assistant
Secretary's purview, but lays spurious doubts on whether they were in
fact carried out to fulfill the requirements of the ESA.
Misstatement of the role of the Fish and Wildlife Service
The ESA gives no role to the Fish and Wildlife Service. While by
convention and delegation the FWS gathers data, reviews it, and
prepares regulatory documents; the ultimate decision-making authority
rests with the Secretary. The Assistant Secretary in supervising the
FWS sets policy and standards in order to ensure that those documents
prepared by the FWS meet the standards of the Department of the
Interior for factual accuracy and legal sufficiency. However, the Act
gives no authority to the FWS, and the Secretary could just as easily
through regulation require preparation and response to listing
documents be prepared by another bureau within the Department of the
Interior.
Nevertheless, the report states:
Although the Sen/ice is responsible for making science-based
decisions, Interior takes responsibility for applying policy
and other considerations to scientific recommendations.
There is absolutely no legal authority for such a statement or any
of the myriad statements implying that the FWS has a statutory role in
ESA decisions. While the Service may have authority delegated to make
decisions, that authority is always subject to review of the Director's
superiors, in this case the Assistant Secretary. The FWS prepares
documents based on scientific data. The Assistant Secretary, as the
supervisor of the Director of the Fish and Wildlife Service, reviews
those documents and in the course of the review, may legitimately
impose standards on those documents.
GAO's conclusions regarding the role of the Director of the FWS and
the Secretary's Office is akin to finding that a Colonel in the Army
has the authority to override a General's military decisions.
Mischaracterization of legitimate quality control activities
of the Assistant Secretary's Office
As supervisor of the Director of the Fish and Wildlife Service, the
Assistant Secretary is responsible for the quality of the products
produced by the FWS. As a function of his supervision of the Director
the Assistant Secretary imposed quality control standards. Those
standards included:
Requiring that all statements in listing rules be
supported by data, as required by statute;
Requiring that all comment letters be considered;
Requiring that data support identification of habitat as
occupied;
Requiring that all studies and data were considered;
Requiring that all rules be written clearly enough for
the reader to understand the basis for the decision included in the
rules;
First, it is the Secretary of the Interior who is empowered to make
the decisions under the Endangered Species Act, not staff biologists.
The statute doesn't envision someone who has spent their entire career
in a narrow field of study making national policy.
Second, decisions under the Act are required to be based on best
commercial and scientific data available, not the more nebulous
standard of 'best science', or 'best scientific information' either of
which can be construed to include theory, hypothesis, speculation and
even opinion.
GAO has chosen to characterize these activities as 'inappropriately
influencing' the work. Is it possible to have a more ridiculous or
nebulous charge? It is the role of a supervisor to ensure the work
meets the required standards. What the GAO has identified in the report
is that the Assistant Secretary's Office would not accept opinion and
speculation in place of data and studies based on the scientific
method. Just because a scientist has an opinion, doesn't make it
science.
Omission of readily available facts
The report repeatedly mischaracterizes matters of fact which could
have readily been identified with a minimum of effort. Had the authors
even taken the trouble to interview me the errors would have been
avoided. Documentation is available.
The report misstates the direction given to the FWS staff
regarding the use of Recovery Plans. The draft information guidance
document entitled 'Lessons Learned' clearly states for biologists to
use the science behind the recovery plan, rather than citing the
recovery plan. This is because there is no scientific standard applied
to the conclusions and recommendations in a Recovery Plan. The Act
requires that all information be considered for a Recovery Plan, but
provides no standard for the final determination as to what is included
in the plan.
Thus the Assistant Secretary's Office merely required that
underlying science supporting the Recovery Plan be used.
The GAO Report characterized the guidance in this manner:
`...a practice was developed that Service staff should
generally not use or cite recovery plans when developing
critical habitat designations.'
The statement could hardly be more misleading given the actual
direction given to the FWS. The 'lessons learned' document is a matter
of public record, and as a matter of fact was the subject of a FOIA
request. How unfortunate that the GAO staff didn't bother to review
this guidance.
The GAO mischaracterizes the nature of policy decisions
related to application of a standard for `occupied at the time of
listing'. The Act requires that critical habitat be designated on areas
occupied at the time of listing. GAO notes that the Assistant
Secretary's Office interpreted this requirement narrowly, and implies
this was improper. The Assistant Secretary's Office exercised
appropriate policy guidance by requiring the FWS to define a standard
for 'occupied at the time of listing' and include that standard in the
rule. The standard was determined on a species by species basis. In the
case of the bull trout, which the GAO references, an area was defined
as occupied at the time of listing if there was one sighting by a
qualified professional within a 20 year period; hardly a narrow window.
The GAO report states:
`...some proposed critical habitat areas were removed, in part
because occupancy by the species could not be ascertained.'
That means there is no data to support occupancy. The Act requires
data to make determinations. Is the GAO suggesting that the Assistant
Secretary's Office should ignore the requirements of the Act and allow
regulations to be imposed based on speculation and hypothesis?
The GAO implies that Recovery Plans have a greater role in
listing determinations than is provided in law. In the report,
the GAO states:
`ESA does not specifically require the Service to meet recovery
criteria before delisting a species'
In fact, there is no place for Recovery Plans in listing
determinations. Under the Act, one listing determination is made, and
that is: whether or not a species belongs on the list. There are five
factors that apply to the decision. Recovery Plans have no scientific
standard required in the statute and they have no regulatory authority.
The Service routinely ignores Recovery Plan standards if and when
species meet them. In doing so the Service appropriately relies instead
on the analysis of the five factors which the statute requires for a
listing determination.
The GAO mischaracterizes the nature of MacDonald involvement
in the Sacramento Splittail Decision.
The GAO report states:
`...she edited information regarding the statistical analysis.
Service staff said that these edits could make it harder to use
the scientific analysis in the future...'
What the GAO fails to note in its report is that first, all the
edits were to support the FWS original recommendation on the splittail.
Second, the wording in the report leads the reader to believe that a
study was altered in some way, or excluded. The truth is just the
opposite. The Service had conducted two studies on the splittail. My
edits ensured that the results of both studies were included in the
final rule. None of the study data or findings was changed or excluded.
How odd that the GAO writers failed to either identify the fact or
report it.
The GAO Report Ignores the Factual Rebuttal to the First
Inspector General Report.
The GAO report references the IG report, yet fails to acknowledge
the rebuttal provided to Interior and first referenced in a July 2007
Resources Committee hearing. In letter responding to a query by
Congressman Young, the IG stated that his report merely repeated
allegations. Those two documents should have raised sufficient
questions regarding the accuracy of the statements in the IG report and
subsequent statements by selected service staff for the GAO to at least
check their facts with the subject of the report.
______
Mr. Smith. Mr. Laverty, can you tell us some of the
challenges, I guess, with implementing recovery programs? I
know that in my district, we have the Platte River Recovery
Program. I have tried to be helpful with that so that we can
arrive at a workable scenario.
I may not be a big fan of some of the legislation or the
statutes, but I know that it is here and we need to work within
those confines and so I want to be a good steward of everything
afforded me and my constituents. Can you tell us what some of
the challenges with implementing these recovery programs might
entail?
Mr. Laverty. Perhaps as a starter, I think one of the
challenges comes from working across jurisdictions and working
with multiple agencies because most species have no
understanding of administrative boundaries, jurisdictional
boundaries.
In my past life as the regional forester with the Rocky
Mountain Region of the Forest Service, working across agency
boundaries, administrative boundaries, becomes one of the
biggest challenges that we have, I think, of bringing people
together to agree on recovery strategies and then mounting the
resources to make those come about.
Mr. Smith. Thank you. I would like to discuss in what
little time I have left, and if any of you would like the
opportunity to respond, there is a frustration, certainly,
among my constituents, and actually I would concede to Mr.
DeFazio the local nature of many of these issues--that local
folks typically know the most about a situation, especially as
it involves the environmental impacts of public policy, or lack
thereof.
In my district, there was talk of not having enough prairie
dogs. They are cute little creatures. Most of my constituents
would argue that there were plenty of them, and when they got
word that there weren't enough of them, in some minds, they got
kind of worked up about that. You know, it seemed to be that
maybe there was some political science involved with wanting to
list that; maybe not. I don't know, truly.
It seems to me that some of these policies are maybe
premature, and they tend to draw a bigger distance between the
public and policymakers or policy enforcers. Could you speak to
that at all?
Mr. Laverty. Yes, I can. I believe the conversations that
we have had and, in fact, I shared during my confirmation
hearings with both committees, is the foundation of science as
the basis for policy. I think you have to have that as the
starting point for the conversations.
The challenge then comes in working with different
constituent groups, and I think your example of the prairie
dogs, and black footed ferrets are another example, are what we
are working on recovering, but yet working with communities,
working with landowners, disparate types of philosophies, if
you will, becomes the challenge, and I think that is why we
have great people working underground to bring these about.
Mr. Smith. OK. Thank you. I appreciate all of you
participating today and answering questions, and I yield back.
Mr. DeFazio [presiding]. OK. Thank you.
Mr. Laverty, I understand you are accompanied by some
people behind you who you might need to refer to since I am
going to be asking you about something which is specific to my
region and has a long history and is a bit complicated, but let
me ask a general question first.
I mean, given your professional background, do you believe
that peer review is useful?
Mr. Laverty. Absolutely.
Mr. DeFazio. OK. And then when the Agency solicits peer
review, what do you think they should do with the peer review?
Mr. Laverty. Well, I can share with you the peer review
that we did on science as a framework for the polar bear
listing. I think it just sharpens the final product, and I
believe you can look at examples on the science reports that
were done by USGS and the peer review comments. Those were
incorporated into the final product.
Mr. DeFazio. OK. So they actually incorporated some of the
critique or suggestions from the peer review into the final
product?
Mr. Laverty. I believe the final review incorporated
thoughts. Probably not all of them.
Mr. DeFazio. Right.
Mr. Laverty. I would imagine if you went back and looked at
the----
Mr. DeFazio. So generally, when you solicit peer review, it
would be useful to receive it, evaluate it, and then
incorporate it into your final recovery plan? That is just sort
of a simple question.
Mr. Laverty. Sure.
Mr. DeFazio. OK. Good. All right.
Mr. Laverty. I understand.
Mr. DeFazio. OK. Again, you may not be able to address
this, but I guess my question would be, in the case of the
recovery plan for the spotted owl, the Agency did solicit peer
review and received a critique which the Agency had solicited
in April 2008, but they rewrote the recovery plan before they
received the peer review, and the peer review was
extraordinarily critical of the recovery plan.
I guess, perhaps to Mr. Lohoefener----
Mr. Laverty. Lohoefener. Yes, sir.
Mr. DeFazio.--if we could perhaps allow him to answer the
question?
Why are we rushing ahead with the draft recovery plan
without having a chance to fully incorporate the critique which
you solicited and received only last month?
For the record, state your name and position, please. You
will have to pull that a little closer.
Mr. Lohoefener. Ren Lohoefener, Regional Director, Pacific
Region, the United States Fish and Wildlife Service.
Thank you for that question. It gives me the opportunity to
correct a misconception. We received the first drafts of the
SEI report, the solicited peer review that you referred to, in
either late March or early April. That draft changed in very,
very minor ways from the final.
We began using the first draft the minute we had it and, in
fact, as the SEI report was being developed, the principal
contractor on that, Dr. Steven Courtney, was in almost daily
contact with our recovery leader, Dr. Paul Fifer. So, from the
very beginning, we used the information that was being
collected in the SEI report to craft the final report.
Mr. DeFazio. Well, I can see it appears that, particularly
on the east side, you were somewhat responsive, but I have real
concerns, and some of your east side work I think does address
sustainability of those ecosystems and the potential for
recovery over there, but I have particular concerns about the
west side.
Has there ever been another recovery plan where you have a
declining population where you recommend reducing existing
habitat?
Mr. Lohoefener. Again, Congressman, thank you for that
question. Again, it gives me the opportunity to correct a
misconception that seems to be out there.
I believe the reduced amount of habitat you are referring
to goes back to the Northwest Forest Plan. You will recall the
Northwest Forest Plan addressed the needs of over 100 species
in addition to the spotted owl and, in fact, the Northwest
Forest Plan did not lay out any recovery criteria specific to
the forest plan.
Therefore, it is no great surprise that when we write a
plan specific to the spotted owl the habitat, which is still
well over six million acres recognized as needed for the
spotted owl, is less than the forest plan.
On the west side, which you referred to, we maintain what
we call managed owl conservation areas, which are principally
the reserves.
Mr. DeFazio. Just to clarify, unfortunately I know way too
much about this. I have been involved probably as long or
longer than you have on this issue, and I just hate revisiting
all this stuff.
As I look at those, they remind me an awful lot of the
preexisting habitat conservation areas which actually were in
place, but led actually to the injunctions which we had. We
seem to be harking back. Has the science changed on evaluating
those areas in the last 22 years?
Mr. Lohoefener. Congressman, I would fully agree. Your
experience out there over the last 18 years with the listing of
this owl is longer term than mine. No doubt about that. Many
things have changed in the range of the spotted owl, not the
least of which is the new threat we recognize, the barred owl.
On the west side, to get back to that issue, in addition to
the conservation areas that have been set up I particularly
congratulate the Forest Service and the Bureau of Land
Management for stepping forward and agreeing to look at habitat
that may serve as a buffer, as an ability to keep the spotted
owl and the landscape as we deal with the barred owl question.
They have voluntarily stepped forward and agreed to at
least for the next 10 years as we look at the barred owl
question maintain that complex forest system. We also are
looking to the state and the private individuals out there to
maintain the connected areas between the reserve areas, so I
think we have an outstanding strategy, especially for the next
10 years, and if we can control the barred owl threat I look
for us to turn the corner on recovery of the spotted owl.
Mr. DeFazio. OK. I have exceeded my time, but I will have
more questions.
I would now turn to Mr. Duncan.
Mr. Duncan. Thank you, Mr. Chairman. I don't really have
any questions since I just got here, although I was told that
the recovery plan for the spotted owl has doubled from $189
million to $400 million. Is that correct? If so, why is that?
Mr. Lohoefener. Actually your last estimate is a little bit
low. I think it is even a little bit more than that.
A large part of the funds being tied up in the needs for
the owl recovery is the recognition of the huge need to manage
against wildfire on the east side. That is a very expensive
thing to do.
Mr. Duncan. So if that $400 million is low, what is the
current estimate of the cost?
Mr. Lohoefener. It is in the recovery plan. Without looking
at it specifically, it is in the neighborhood of $450 million,
I believe.
Mr. Duncan. All right. Thank you very much.
Mr. Lohoefener. Assistant Secretary Laverty points out to
me it is actually $459 million.
Mr. Duncan. All right. Thank you.
Mr. DeFazio. With that, Mr. Grijalva would be next.
Mr. Grijalva. Thank you, Mr. Chairman.
Ms. Nazzaro, can you briefly elaborate? We understand
scientists were instructed to Julie-proof their decisions to
gain Ms. MacDonald's approval for their work. Can you elaborate
on that? What does it mean to Julie-proof a decision?
Ms. Nazzaro. Yes. This was a term that we heard during our
interviews with some of the Service biologists regarding their
decisions.
What this would be, it would be an act of anticipating what
it would take to get a decision approved by Julie MacDonald, so
in their activities, they were writing the decision based on
that criteria rather than on the basis of the science--what
they anticipated she was looking for, rather than using what
the science would have dictated.
Mr. Grijalva. Thank you.
Ms. Luxton, can you tell me and the Committee why the Vice
President's office is interested in the ship strike rule? You
know, OMB reviewed the proposed rule, didn't seem to have any
issue with it. What has changed since then?
Ms. Luxton. Well, again, Congressman, the interagency
review process provides the opportunity for any part of the
Federal government that has an interest in the issue to be part
of a robust dialogue to make sure that the rule is as strong a
final product as it can be.
Beyond that, I really can't get into the details of the
interagency review process in an ongoing rulemaking.
Mr. Grijalva. OK. Secretary, in January Director Hall
issued a scientific code of conduct for the Department, but it
doesn't apply to the Assistant Secretary, Deputy Assistant
Secretary or anyone else in those offices.
Would you consider the idea of it being Department-wide
including those offices, the application of that code of
conduct?
Mr. Laverty. The first day on the job, I spent some time
with Dale, as the Director of the Fish and Wildlife Service,
and his staff as well as with my immediate staff, and I shared
with them my performance expectations as it relates to the
involvement of my staff with Dale and his staff.
I believe that the framework that we established at that
moment in time talks very clearly about the roles and
relationships of the Fish and Wildlife Service in terms of the
integrity of science and the role and interaction that my
office would have with both the Fish and Wildlife Service, as
well as the Park Service.
I believe it sets the bar very high, and I think the
Secretary has also done a great job in terms of establishing a
standard of performance and ethics, and with those elements in
place I believe that we have the mechanism in place to do the
kinds of things that need to be done to hold again the
integrity of science.
Mr. Grijalva. Without the application of the code?
Mr. Laverty. I think Dale's code is an absolutely important
part.
Mr. Grijalva. That should apply to the respective offices
that I referred to--Assistant Secretary, Deputy Assistant
Secretary and their staffs, Chief of Staff?
Mr. Laverty. It certainly fits for all of our folks, and I
believe that the Secretary's code of ethics sets the standard
on behavior across the Department.
Mr. Grijalva. OK. If I may, Mr. Secretary, two territorial
issues dealing with the endangered species.
First, the cactus pygmy owl in Arizona in my district. It
was delisted in April 2006. I think the conclusion that Fish
and Wildlife came up with is that while the population was
endangered in southern Arizona that there was more of the
species in Mexico. Consequently, the protection shouldn't be
extended.
A petition was filed, I think, on March 15, 2007, to list
the Sonoran Desert population of pygmy owls, which includes
distinct owls between Arizona and New Mexico. The 90-day period
on the petition was due in June. It has been almost a year. Can
we expect the Service to have a finding on the petition to list
in any timeframe soon?
Mr. Laverty. Mr. Grijalva, I will follow up on that as soon
as I get back. I am sorry. I can't tell you the exact status on
that one, but I will follow back up when I get back.
Mr. Grijalva. And let me just continue with the reasoning
of delisting the pygmy owl.
If we follow that reasoning, Mr. Secretary, then wouldn't
it be accurate to say that wolves, grizzly bears, jaguars,
Canadian lynx, and other species found in the U.S. but also
found in greater numbers in Canada and Mexico, wouldn't they be
warranted for delisting as well if you follow that reasoning on
this particular species?
Mr. Laverty. I believe the status reviews of the Fish and
Wildlife Service considers populations at large.
Mr. Grijalva. And the other species is the Mexican wolf.
Experts tell us that it is probably necessary to call a
moratorium on the taking, on take, until there is a task force
of experts that can really provide guidance.
Do you agree with that concept? How do you square the
additional killing or permanent removal of wolves under
Standard Operating Procedure 13 with the ESA requirement that
killing and permanent removal must not preclude progress to
recovery? How do you reconcile that and the moratorium so
experts could convene and provide some real guidance to the
Department?
Mr. Laverty. Mr. Grijalva, I understand a little bit of
what is taking place as it relates to the Mexican gray wolf,
and I know that they are gathering additional information as
part of the 10[g] effort.
How all those pieces come together and incorporate not only
the new science and what they are finding in terms of what is
actually happening with numbers of wolves, but also then the
interaction with the grazing community, so I think there are
some things that are going on that will help in terms of
defining what needs to be done.
Mr. Grijalva. But the reconciling of Procedure 13 and
recovery?
Mr. Laverty. I think that has to all be part of that.
Mr. Grijalva. Thank you.
Thank you, Mr. Chair.
Mr. DeFazio. I now turn to Mr. Gohmert.
Mr. Gohmert. Thank you, Chairman. I appreciate having this
hearing because this certainly is an issue that needs to be
dealt with.
Let me ask anybody that knows. I had read somewhere--and
you know you can't trust everything you read, and that is why I
am asking--that there have been spotted owls spotted mating in
such innocuous places as a K-Mart sign. Have you all read or
heard anything like that? Other places outside of the virgin
woods. Are you aware of any spotting of the spotted owl outside
their virgin wood territory?
Mr. Lohoefener. Thank you for that question. One thing I
learned way back when I took ornithology in college was that a
bird can show up any place, any time. That is the benefit of
having wings.
Certainly owls disperse. I have no doubt that they can get
lost at times and show up places that normally they wouldn't
be.
Mr. Gohmert. Well, my thought was that if the spotted owl
were capable of mating on a K-Mart sign then maybe as an
endangered species we ought to consider the K-Mart signs
because they have been in financial trouble. We have lost a lot
of K-Marts.
Maybe we could bring a bunch of the K-Mart signs together
and have them in a little K-Mart forest and encourage the
spotted owl there because as I read and the Oregonian said the
versatile and voracious barred owl is proving far more adept at
getting rid of the small owls, such as the spotted owl, than
the Endangered Species Act was in saving it.
What gets me is for years we heard the Federal government
had to stop the logging in the Northwest. We put thousands and
thousands of people out of work. We put thousands of people
into poverty to save this little owl, and it turns out we
weren't saving the owl. Nature is taking care of getting rid of
the owl with the barred owl moving in.
Sometimes it just seems that we get so arrogant, that we
think that we are so much more powerful than nature, that we
are going to come in. I don't know. Have there been any
thoughts of maybe killing some of the barred owl to try to save
the spotted owl? Is that where we are going to intervene next
is to try to stop nature from taking its course? Do you know?
Mr. Lohoefener. You ask a good question, Congressman. There
are two questions revolving around the barred owl. Should we
control barred owls, and can we control barred owls?
The first question is a policy question. The barred owl is
protected by the Migratory Bird Treaty Act itself. It is a
policy question we need to address in a public forum soon and
resolve that.
The second question, can we control barred owls, is an
equally relevant question. My information shows that the barred
owl now occurs throughout the range of the northern spotted
owl, so that is a large area. I am not at all sure even if
the----
Mr. Gohmert. Now, they originally weren't in some of the
northwestern forests where the northern spotted owl was. Isn't
that correct? They have moved into that territory now, as I
understand it.
Mr. Lohoefener. My information is that over the past 100
years the barred owl has been moving first west through Canada
and now south down through Canada and now throughout the range
of the spotted owl, even down into California, so it has
changed its range.
Many species change their range through time. As climate
change happens, I think we expect this phenomena to be more
common. All the more need to address the philosophical question
of should we manage the species.
Mr. Gohmert. You bring up climate change. There is another
issue because the climate change experts assured us back in the
1970s absolutely certain. We had 30 years showing that the
climate was changing. It was getting colder.
We were told repeatedly we are at the beginning of a new
ice age. I am going, ``Do you really think so?'' Thirty years.
No. We have 30 years of data showing that we are at the
beginning of a new ice age. Thirty years later, we are saying
the data shows we are at the beginning of burning up the
planet.
Let me just mention this. I will tell you, I am really a
bit emotional about this in addition to being sarcastic a
moment ago. I was talking to an 83-year-old lady back home, and
she is not getting the change she believes in or what she ought
to have, but she is now paying $400 to $500 a month for energy,
and she is thinking she needs to change and go back to her
energy source when she was a little girl of wood because we are
putting so much of our vast resources off limits. We are
endangering species like my 83-year-old constituent back home.
With this Endangered Species Act, Mr. Chairman, we had an
improvement in the last Congress that passed the House because
it took head on this issue of one percent of the species being
saved. We want to save the species.
This has not been the way to do it, and we ought to end
this policy that encourages shooting, shoveling and shutting
up. We ought to pay people if we take their land because they
have an endangered species. We would start saving a lot more
species.
Thank you. I see my time is up.
Mr. DeFazio. Thank you. Just a quick response, living at
the epicenter of the spotted owl controversy.
The spotted owl is one of many potential indicators for old
growth ecosystems. The fight is now and always has been about
the last vestiges of old growth in the Pacific Northwest, plain
and simple. Distill out all the science. That is what it is
about.
Until we protect that old growth, we are going to continue
to have this controversy. We can argue it infringes the spotted
owl or other issues, but that is what it is all about, it has
always been about. We are stepping backwards to the 1990s, and
I just fear we are going to end up seeing our forests totally
shut down again. That is going to be a disaster.
Mr. Gohmert. Will the Chairman yield for a question?
Mr. DeFazio. Certainly.
Mr. Gohmert. One of the things we figured out to save older
forests in east Texas is to go in and trim undergrowth and have
fire lanes to prevent spreading of fire. Is that something that
is being done or contemplated to make sure that nature doesn't
wipe out the old growth forest?
Mr. DeFazio. Nowhere near enough actually. I am developing
a plan substantially based on thinning, both green thinning and
fuel reduction thinning. We haven't had adequate budgets to
implement our fuel reduction in the Pacific Northwest.
That is part of their proposed recovery plan on the east
side. I think that has a lot of merit. The west side doesn't
have as much fire danger, but southern Oregon does. I don't
think their plan gets at that issue.
No. You are right about that. We do not want to lose these
ecosystems to unnaturally intense fires that come from poor
management over a number of years, so the gentleman is correct
there.
Mr. Inslee?
Mr. Inslee. Thank you.
Mr. Laverty, folks my age are really excited about maybe
having grandkids, and we are very concerned those grandkids are
going to grow up in a diminished world, a world without polar
bears, without salmon, without orca.
We are doubly concerned because this Administration has
given them nothing but delay and dysfunction and just outright
deceit in this endangered listing situation. I think that
unfortunately continued in this really hoax of a polar bear
listing. I want to ask you about that.
I want to make sure I understand. Despite my friend Mr.
Gohmert's argument, the Bush Administration has concluded, has
it not, that the best available science indicates that the
polar bear faces a major risk of extinction within the next
century because of global climactic changes associated with
global warming gases? That is true, isn't it?
Mr. Laverty. Mr. Inslee, the listing decision and the best
available science that came to us from perhaps the best
scientists in the world as it relates to the understanding of
polar bears and the Arctic conditions tells us that the listing
basis was based on the fact of sea ice lost and continued sea
ice loss.
Mr. Inslee. Right. And the sea ice loss is due to climactic
changes caused by human anthropomorphic introduction of
greenhouse gases into the atmosphere. The Bush Administration
has reached that conclusion, has it not?
Mr. Laverty. There is no question, and I think everyone
agrees, that warming is taking place.
Mr. Inslee. And we all agree and the Bush Administration
agrees the warming is taking place at least in substantial part
because humans are putting greenhouse gases in the atmosphere.
Just say ``Yes." We can move on.
Mr. Laverty. I would agree, and I think you----
Mr. Inslee. You agree that the Bush Administration----
Mr. Laverty.--have to look at that from a very global
perspective across the United States.
Mr. Inslee. OK. Now, when you reach a conclusion like that,
the Endangered Species Act gives a promise to Americans, does
it not, that the Federal government will change course to
reduce the threat that would cause this extinction? You
certainly agree with that, do you not?
Mr. Laverty. The challenge that you have with that question
is linking the cause of emissions to a specific point and
impact on the habitat. You can't do that.
Mr. Inslee. You agree with me that a listing decision calls
for the Federal government to change course so that it can
reduce the threat caused by the problem. Isn't that true? I
mean, come on. Everybody agrees with that, right?
Mr. Laverty. The listing decision is to help recover the
species.
Mr. Inslee. Right. So let us talk about what the Bush
Administration has done as a result of this listing decision.
The day before the listing decision, it opposed a cap on
the trade to reduce the threat of global warming that would
cause the extinction of this bear and the collapse of the polar
ice sheet, which is already occurring. We have already lost a
million square miles last summer of the polar ice cap.
The day after the listing did the Bush Administration
embrace a cap in the trade system?
Mr. Laverty. I would take your comment.
Mr. Inslee. Well, just so we can be clear, the listing did
not cause the Bush Administration to change one iota in its
resistance to the single most important thing that can prevent
the loss of the Arctic and the loss of the bear, which is the
cap in the trade system. Isn't that right?
Mr. Laverty. I would suggest that dealing with emissions
and climate change is a global issue. It is not going to just
take place here in the United States.
We know from the science that if we shut off emissions
today that it would take 40 plus years before we would see a
change in conditions in greenhouse gases.
Mr. Inslee. Right. We will get to that.
Mr. Laverty. I am sure we will.
Mr. Inslee. You will have a chance to put your talking
points on the record.
Did the Bush Administration embrace a renewable portfolio
standard for clean energy as a result of this listing of this
bear?
Mr. Laverty. I can't tell you if it was related to the
bear.
Mr. Inslee. Did the Bush Administration change its position
regarding research and development budgets for clean energy
that can save the polar ice cap and this bear as a result of
this listing?
Mr. Laverty. I don't know that it is related to the bear.
Mr. Inslee. Well, the answer would be no, right?
Mr. Laverty. I don't know if it was related to the bear.
Mr. Inslee. Well, did the Bush Administration do anything
as a result of listing this bear? The answer is no.
Did it change its permitting process for oil and drilling
rigs in the North Sea?
Mr. Laverty. I believe we already have protection in oil
and gas drilling in the North Sea with MMPA.
Mr. Inslee. Did it change? Did it change its permitting
process for drilling in the North Sea as a result of this
listing?
Mr. Laverty. I would say again because of the protections
that are already provided through MMPA there was probably not a
need to do that.
Mr. Inslee. All I hear from you in this listing is a list
of things the Bush Administration has refused to do, even
though it has concluded that this bear is going to go extinct
because of global warming.
I haven't heard a single thing on the list of what the Bush
Administration is going to do as a result of this listing that
will, in fact, prevent the extinction of this bear and the
allowance of our grandkids to have this bear in their life.
Now, can you point to a single thing the Bush
Administration has done as a result of this listing?
Mr. Laverty. I would say that as a result of the soliciting
that took place last week that we have already done some things
to move ahead on what we can do to protect this species.
I, too, because of my age--I have grandchildren. I have a
granddaughter and I have a grandson, and I engage in
conversations with my grandkids about the polar bear. They are
as concerned about the polar bear as I am, and I believe that
we are on course to do the kinds of things in terms of raising
the awareness of American people globally about what needs to
take place to deal proactively with the challenges.
This is not just a United States issue. This is a global
issue, and I believe that we have to be working harder globally
to deal with this issue.
Mr. Inslee. That is great, but we are the Federal
government of the proudest country in the world, and you
haven't done a single thing to protect these bears. You can't
tell your kids or grandkids you have done anything, and you
can't tell me you have done anything because you haven't done
anything.
Mr. DeFazio. The gentleman's time has expired. Thank you.
I would turn now to the gentleman from Alaska, Mr. Young.
Mr. Young. I thank the Chairman. It is awfully difficult
for me to sit there. You know, thank God for George Bush.
If we wouldn't have had the hurricane, if we wouldn't have
had the earthquake in China and the polar bear cap habitat
wouldn't be lost. I mean, the whole thing. It is just marvelous
to watch somebody instead of using science browbeat somebody at
the Department of Interior on nothing.
If anybody reads the geology of the world and the past of
the world, 11,000 years ago there was no ice cap and the polar
bear survived. That is amazing. I am one of those few people
who do not believe that man is creating this so-called climate
change, and 300 other scientists from your state, by the way,
and other areas around this nation agree with me.
No one wants to debate the issue because we have fallen
into this idea that this whole thing is coming to a collapse,
and the ice cap is disappearing and the polar bears are going
to disappear and that is nonsense. I have geologists come to me
and talk about the oil under the North Pole. Now, if that is
the case there wasn't an ice cap.
Think about that a moment. All I know is, Mr. Chairman, and
I don't want to be partisan in this, is that Bush is blamed for
the high cost of gasoline. I would respectfully say we have
done nothing to mount the supply since 1973. The last time this
Committee passed the trans-Alaskan pipeline is the last Act
this Congress has done to promote supply.
Demand is going up. Supply is going down. We have a great,
great supply of oil in the Chukchi Sea, the Beaufort Sea and
other parts of Alaska, let alone the Gulf of California or the
coast of California and the coast of Florida, and yet no one
wants to develop it. I want to ask my American people if they
like paying $4 a gallon. It will be up to $6 a gallon by the
end of July, so you better buy some and store it because this
Congress hasn't acted.
Now, I have said this about this Congress. Not you. We
haven't done nothing. We were in control 12 years and did
nothing. The Congress is irresponsible when it comes to supply,
and we must do this supply equation in delivery of fuel to this
nation if we want an economic base.
Mr. Laverty, one of the things I would like to know is you
made a decision. I am not overly happy with the threatened
decision, but it is better than endangered. What model did you
base the fact that these bears are threatened?
In fact, there are I think 25,000 polar bears now in the
world and a few years ago there was less than 15,000, so
something is occurring. What was the model that you used in
finding the decision on how these were listed?
Mr. Laverty. Congressman Young, the model that provided the
framework was based on the IPCC models. We put together an
ensemble of those models, going back and looking at how they
fit with what has happened in the past and then projecting into
the future. That became the foundation for the estimates out in
the future.
The other part that factored into that was the actual
observed trends and what is actually happening with sea ice
loss and how it relates to the forecasting models. Since the
sea ice is the foundation for that species in terms of its food
gathering and becomes the important part of it, any time you
look at habitat loss that becomes a challenge.
I believe that wildlife modeling becomes an extremely
important part of this. You talk about the population that
exists today. Much of the population recovery today is because
of managed harvest levels, so it has brought it up from places
where probably back in the 1960s and 1970s we were down around
10,000 and 12,000 bears, and because of managed sustainable
harvesting that population is back up.
Now the bears are facing a different kind of threat, and
that is the loss of habitat. That was the foundation for the
decision.
Mr. Young. Again, you know, I don't want to dispute this,
Mr. Chairman.
Keep in mind I heard the same argument about Terror Lake in
Kodiak. We couldn't build a lake and raise the water because
there were two brown bear dens, and they would be flooded. I
just ask you how dumb those bears are because we did build the
dam, and the bears just moved above the waterline to another
denning area.
We are the only species that I know of who are not trying
to adapt to climate change, if there is climate change, and
apparently some people think there is. Is it man caused? I
don't believe it is.
But if that is the case, then we are the only ones that
want to keep everything at status quo instead of looking at
adaption. Animals will adapt. They will not be extinct,
contrary to what some people say in this room. But oh, woe is
us. They are all going to die. They didn't do it 11,000 years
ago.
It is an amazing thing, but of course we didn't have
scientists and newspapers and Congressmen that just go on
emotionalism about how the world is coming to an end and saying
maybe we ought to think about adaption if this is occurring.
Mr. Laverty, again as I talked to the Secretary and
yourself, we have some other issues concerning polar bears that
we will discuss at a later date. Hopefully we can solve those
problems together.
I am glad to see that some people said in this room earlier
on, according to information I received, that someone had
supposedly done something wrong without really backing it up. I
suggest before anyone makes a statement that might impugn
someone's character that they might want to look at the facts
and understand it.
I yield back, Mr Chairman.
Mr. Duncan. Would the gentleman yield just for a second?
Just very quickly.
Mr. Young. Go ahead.
Mr. Duncan. I am just curious about one thing that was just
said, and I want to see how accurate it is. You said the
population of the polar bears was 10,000 or 12,000 in the
1970s. Is that correct?
Mr. Laverty. That is correct, sir. Yes.
Mr. Duncan. And what is it now?
Mr. Laverty. Approximately 20,000 to 25,000.
Mr. Duncan. All right. Thank you.
Mr. DeFazio. We would now turn to Mr. Sarbanes.
Mr. Sarbanes. Thank you, Mr. Chairman. Thank you to the
panel.
I wanted to go back briefly to the ``Julie-proofing''
concept that Congressman Grijalva was asking you about, Ms.
Nazzaro, because there are two sinister consequences to what
you are describing. There are implications here.
One is when science comes up unfiltered and then it is
rejected, which is a problem that we have been discussing and
actually is analogous to intelligence, for example. In the
intelligence community that comes up and then gets rejected.
That is bad enough.
Even worse is when the resistance at the top begins to
contaminate the entire process of gathering information and
having a deterrent effect on people at lower levels in terms of
what they will offer up because then you are not even getting
the science or in the intelligence community, analog
intelligence, coming up to the higher levels.
What happens is the policy begins to influence the way it
is gathered, analyzed and presented, and that pushes out and
down and dangerously insulates the agency at all its levels
from making good decisions.
So when you were talking about the ``Julie-proofing,'' you
explained that people below Julie MacDonald would provide or
present or include criteria on things and considerations that
they thought she was interested in, rather than the science. I
am just fascinated by that as a kind of guide for us on this
danger.
Can you be a little more specific? What is an example? Give
me a couple examples, if you can, of a Julie MacDonald criteria
that somebody would include, and what is the kind of science
criteria that they might keep out in favor of that Julie
criteria?
Ms. Nazzaro. Actually, why don't I have the staff who
actually did the interviews of some of these people come up----
Mr. Sarbanes. Yes.
Ms. Nazzaro.--because this issue came up both during
interviews we did with some of the Service biologists, as well
as during surveys we did.
What they were doing was anticipating what kind of criteria
she would be looking for to support their decisions and then
they were writing their decisions based on this anticipation,
knowing that they wanted to get these things approved through
her.
I have Jeff Malcolm with me, who is the Assistant Director
responsible for this engagement, and I will have him directly
respond to your question if you please.
Mr. Sarbanes. Mr. Chairman, I assume that is fine that we
can hear from Mr. Malcolm? Yes.
Mr. Malcolm. My name is Jeff Malcolm, Assistant Director
with GAO's Natural Resource and Environment Team.
There were a number of policies we discussed, informal
policies, and definitions of some items that weren't
particularly clear in the Act. ``Occupied at the time of
listing'' is one of the examples that we used, so in
designating critical habitat there has been a lot of discussion
about what that phrase actually means.
In some cases species were listed very early in the Act,
let us say in the 1970s, that still don't have a critical
habitat designated yet, so doing that today there was a large
debate over what occupied at the time of listing meant. Was
that the occupied territory when it was listed in the 1970s?
Julie had some interpretations on how that should be
implemented, in some cases limiting it to a specific timeframe
around the listing decision so that influenced decisions, so
they would put information forward only talking about occupied
habitat specifically during a specific timeframe based on
policies and formal guidance that she had provided.
Mr. Sarbanes. So in other words, she had kind of made it
clear what her interpretation was and so then they designed
their analysis and presentation of the information around that
particular interpretation----
Mr. Malcolm. Right.
Mr. Sarbanes.--to get it through, basically?
Mr. Malcolm. Right. There were a couple different things.
In some cases we heard that people wrote two different
decisions. I mean, they would have one in their pocket in case
the other one didn't go through. Then they would have the one
that they thought would more likely go through. In other cases
it was just write the other decision the first time and send
that forward.
Ms. Nazzaro. I think you raised two issues. One is there
are opportunities where you would make a decision based on a
policy call, and there are times when that is appropriate, but
what we are asking for is transparency in the process.
The other issue that you are raising is the fact that the
guidance is not clear. We talked about the fact that the last
time formal guidance was written as far as the 90-day petition
process was back in 1996. In 2004, the courts struck down
various aspects of that both on merit, as well as on formality,
if you will.
And so what we are hearing from a lot of the scientists is
there are nebulous terms. They don't know what it means. You
know, people have the opportunity to interpret it as they see
in this case. It appears that she had different definitions for
things.
What we are asking the Service to do is to finalize this
draft guidance that has been in draft now for over eight years
I believe in various forms. It is time to get something out
there so that the Service biologists know what they are
supposed to be using and it is transparent to the general
public.
Mr. Sarbanes. I see my time is up. Mr. Chairman, we have
reached a scary place if scientists and professionals in the
Department have to carry around an extra version of their
analysis in their pocket and try to gauge which version will be
able to get past their superiors.
I yield back.
The Chairman [presiding]. OK. Do other Members have
questions? Yes, sir. Mr. Wittman?
Mr. Wittman. Thank you, Mr. Chairman. Just a question for
Mr. Laverty.
We have heard about polar bear populations as a worldwide
group and then population dynamics of those polar bears within
the United States. Can you tell us as a means to manage the
U.S. population are you going to use the numbers or the
population dynamics of the world as a whole?
If so, when you do that how are you going to look at
approaching or designating how levels are being approached for
polar bears that are harvested or that are affected by human-
bear interactions here within the United States?
Mr. Laverty. There are several pieces to the response to
your question.
Two weeks ago, I had a chance to journey to Canada with the
Secretary and met with the Minister of the Environment in
Canada. We talked about what we can do, jointly with the
Canadians, in terms of U.S.-Canadian relationships and managing
bears. The Canadians have about two-thirds of the total
population of bears, and I believe that some of the actions
that came out of that are the kind of things that will fit.
The next step the Fish and Wildlife Service will be
undertaking is the designation and delineation of critical
habitat. That is going to start right away. I think as we begin
to get those pieces together, continuing to look at how we can
gather more information and knowledge about bears and bear
populations, bears' behavior, adaptability, those are all
pieces that come together as we continue to move ahead on how
to protect and conserve the bear.
Mr. Wittman. Mr. Chair, one more question. I am just
curious.
Has the Department requested funding to implement the U.S.-
Russia Polar Bear Treaty? If so, what are the extent of
resources that are needed in order to implement that?
Mr. Laverty. Congressman, I am not sure. I will follow up
with that one.
The Chairman. The Chair wishes to apologize to the
gentlelady from Guam for failing to recognize her in proper
order.
And now the gentlelady from Guam, our distinguished
Subcommittee Chair on Fish and Wildlife, is recognized for
whatever time she desires.
Ms. Bordallo. Thank you. Thank you very much, Mr. Chairman.
I won't take up too much time. I did come in late. The
Subcommittee on Insular Affairs also has a hearing this
morning.
I hope these questions haven't been asked, but I would like
to hear them again if they have. To you, Ms. Nazzaro. Did the
Service follow a consistent process across the eight regions in
selecting the eight MacDonald ESA decisions for further review?
Ms. Nazzaro. Our conclusion is that they generally followed
it because they used the same criteria. However, the process
that they used did vary slightly by region. There was a
telephone conversation from Director Hall to the regional
directors instructing them basically to revisit issues,
decisions that Julie MacDonald had been involved in.
How they came up with those is where there was a slight
variation, and some of it had to do with the workload. A region
that did not have many decisions it may have been readily
available, but the regional director would have known what
decisions to include. Others did involve lower level staff so,
like I say, it varied slightly, but generally they all used the
same criteria.
Ms. Bordallo. A follow-up question then. Overall in what
ways can the decision-making process be improved in your
opinion?
Ms. Nazzaro. I think some of the issues that we raised with
Representative Sarbanes' questions. We do recognize the
difficult task that these officials are asked to do.
A lot of times there is not a lot of information on the
species or the habitat. You can reach different conclusions
with the information. We have also talked about how vague some
of the guidance is and that there is a need to redo it.
We really are looking for an environment where we have a
trust that the decisions that are being made are the right
decisions, and we would view certainly having guidance that is
very specific is useful for the Service biologists and then is
transparent to the general public.
You know, for example, we talked about the recovery plans,
not using the recovery plans as criteria for delisting. Well,
the recovery plans go through a public scrutiny process. The
general public thinks that is the criteria being used, and then
they find out the Service used other criteria and it just
raises questions.
Again, it is the trust of the decision makers. Let us make
the process transparent. Let us make it clear and very
straightforward, and I think it would minimize a lot of these
allegations and improve communication.
Ms. Bordallo. Are you beginning to overturn or restructure
this decision-making process currently? Is it ongoing now? Have
you begun to do the work now? How long until you think you will
have everything in the right place?
Mr. Laverty. If I could perhaps respond?
Ms. Bordallo. Yes.
Mr. Laverty. The Service has, in fact, moved ahead on some
of the recommendations that came from the GAO report and
recommendations as it relates to the findings in the recovery
piece. We are working on the guidance, and that should be out
fairly quickly.
Ms. Bordallo. Good. The other question I have is for Mr.
Laverty. Why does it take the Service an average of two and a
half years to respond to a 90-day petition?
Mr. Laverty. I will try. I have been in the job for a
little over 180 days, but let me tell you what I have learned.
The bear is a good example, the polar bear, the incredible
amount of information and science that has to come together to
make those decisions. Some of them are fairly straightforward.
Some are fairly simple. Others I think are extremely complex,
and they require not only gathering science, but then the
scientists in terms of their peer review. That takes times.
Just as we went through the polar bear, we had peer review
that took time. Then we put that out for comment, so it does
take time to do that.
Ms. Bordallo. Thank you, Mr. Chairman. I think that answers
my questions. Thank you.
The Chairman. Thank you.
The gentleman from Washington, Mr. Inslee?
Mr. Inslee. Thank you, Mr. Chair, for indulging me. A
previous question prodded me.
Mr. Laverty, you mentioned you had gone to Canada. Did I
hear accurately that in Canada you told Canadian media that you
thought the Congress should amend the law so that bears could
be shot, polar bears could be shot in Canada and imported into
the United States?
Mr. Laverty. I don't believe I said that, sir.
Mr. Inslee. I am sorry?
Mr. Laverty. I don't believe I said that.
Mr. Inslee. I appreciate that. We just had received reports
of that. Thanks for clarifying that.
I should give you a chance to make sure. Do you want to
clarify what you did say?
Mr. Laverty. I would like to, yes.
Mr. Inslee. Go ahead. I am sorry.
Mr. Laverty. Once the bears are listed under the ESA as
threatened it becomes a depleted species under the Marine
Mammal Protection Act, and once it is listed as a depleted
species under the Marine Mammal Protection Act you can no
longer bring those animals into the States.
To make any adjustments it would require an Act of the
Congress to amend the Marine Mammal Protection Act to permit
that import of those trophy or species taken in Alaska.
Mr. Inslee. I am reading a CBC news report, May 16, 2008.
It is talking about the fact that, as you have indicated, the
current law would say they are depleted and not subject to
importation.
It reads, ``But Lyle Laverty, the U.S. Assistant Secretary
of the Interior for Fish and Wildlife and Parks, told CBC News
that there is some hope that an exception could be made for
polar bear trophies, even though polar bears are now a
threatened species. ``What we are going to have to do is to
work with Congress,'' Laverty said Thursday. ``I don't want to
say it is simple, but with just a little amendment to the
Marine Mammal Protection Act, Congress can make a provision
that would permit the importation of a trophy from Canada.''
That sounds to me like you were saying that there should be
a little amendment to the Marine Mammal Protection Act that
would allow bears to be shot in Canada that are now listed as
threatened and imported into the United States. Am I misreading
that, or is that a misquote?
Mr. Laverty. I can tell you the essence of the
conversation. It was in fact she asked how could bears that
were taken in Canada come into the States, and I was very
forthright, and told her that it would take a change in the
Marine Mammal Protection Act.
That certainly becomes the role of the Congress. If that
becomes an action that you would like to take that certainly is
the prerogative of the Congress.
Mr. Inslee. This news report----
Mr. Laverty. Just a second.
Mr. Inslee. I am sorry. Go ahead. Go ahead.
Mr. Laverty. If I could just close up on that, what becomes
important is that harvesting of bears in Canada is under a
very, very sustained and managed process, and I believe that
the action to do that would not be a threat to the bear. We
could not find that harvesting for either subsistence or trophy
hunting is, in fact, a perceived threat to the bear.
Mr. Inslee. So is this article inaccurate when it said that
you hoped such an exception could be made? Do you hope that
such an exception can be made?
Mr. Laverty. You know, I guess I would bring it back to
you.
I think that the fact that people have been able to bring
in species is an important part to the Canadian economy, and if
that fits into the scheme of things and there is not a threat
to the bear then I would say it is worthy of conversation.
Mr. Inslee. So do you hope there is an exception or not?
Mr. Laverty. I would say yes.
Mr. Inslee. Pardon?
Mr. Laverty. Yes.
Mr. Inslee. So the Assistant Secretary in charge of marine
mammal protection who just listed the bear as a threatened
species hopes it will be allowed to be shot in Canada and
brought home. Is that right?
Mr. Laverty. I would say that given the fact that
sustainable harvesting of bears in Canada is not a threat to
the species, it is an OK thing to do.
Mr. Inslee. Well, I think that your hopes in that regard--I
am not against hope. I am all for hope, but your hopes in that
regard are consistent with the failure of the Administration to
do anything as a result of this listing, which is my concern. A
listing that is just a listing, without action, is just a piece
of paper.
Now, you have mentioned that you are going to go and start
working on a critical habitat designation for the polar bears,
but we all know what the critical habitat is. It is the ice,
and if the ice is gone the platform that supports the bears'
survival will be gone.
This Administration has concluded that the ice is likely to
be gone as a result of global warming, so isn't it true that we
already know what the critical habitat is, we already know that
global warming is causing it to disappear, we already know that
the Bush Administration agrees with that, contrary to the
comments of some of my colleagues across the aisle?
Their own party's President has recognized what the
critical habitat is, and the fact is that the Bush
Administration is not doing anything significant to reduce that
threat. Isn't that a pretty fair statement?
Mr. Laverty. I guess I would say not necessarily so. I
think the fact that we have raised the awareness of the
importance of dealing with climate change is absolutely
fundamental to engaging in conversations.
If we are going to solve this problem, it is a global issue
and you cannot just look at the issues in dealing with the
United States' emissions without bringing into the context all
the rest of the emissions that are taking place that are
impacting the bear.
You cannot tell me that there are any emissions that come
directly from the United States that impact the specific site
for the bear.
Mr. Inslee. I can't tell you which molecule of DDT would
have killed which eagle either or which Al-Qaeda terrorist may
threaten us.
Mr. Laverty. Precisely.
Mr. Inslee. But when the Federal government refuses to act
to a known threat, that is irresponsible and against the law of
the Endangered Species Act.
What you have said, that you are satisfied that by this
listing you have raised the awareness, the consciousness of the
community, that is great, but a fire department that simply
hollers ``Fire!'' and raises the awareness and does not get a
ladder, and does not get a hose, and does not get the engine
out of the fire shop, is not doing its job.
I just don't believe, under any stretch of the imagination,
this Agency is doing its job to respond to this listing, which
is to do something about the threat. You know what the threat
is. You know what it is going to do to the polar bears, but
this Administration refuses to act.
I think it is sad it is going to take a new President. I
really wish that we had an epiphany from this President. It is
apparent to me from your testimony we haven't got one, but we
are going to have to do some really fast work in January. You
can respond if you would like.
Mr. Laverty. No, sir.
The Chairman. The gentleman from Oregon, Mr. DeFazio, is
recognized.
Mr. DeFazio. Thank you, Mr. Chairman.
Ms. Nazzaro, on the question about the decisions that we
visited last year in the hearing by Ms. MacDonald and those
decisions that were influenced or corrupted by her work, one of
the things that was done to clean up the Agency was to set up a
conduct accountability board, as I understand it.
It is my understanding that the board can only review
matters referred to it by Ms. Scarlett, who we took testimony
from last year, and the Chief of Staff, Brian Waidmann. I am
not certain what their knowledge of or involvement in some of
Ms. MacDonald's work was.
I know that apparently Mr. Waidmann at least signed off on
some of those and approved some of those decisions which had
been influenced by her. Have you interviewed those two
individuals?
Ms. Nazzaro. We did not interview either of them, and Ms.
Scarlett's name has not come up. Again, our intention in
raising these was just that there was we felt a lost
opportunity, if you will.
Mr. DeFazio. Why haven't you interviewed Mr. Waidmann then
since he signed off on some of these faulty decisions?
Ms. Nazzaro. As I said, we weren't there to try to
corroborate or to get the extent. You also have to realize the
amount of time that we had to do these engagements. We didn't
start this until late last year and so it was a relatively
short timeframe.
We tried to gather as much information as we could to raise
some of the issues, and what we are saying is that it appears
that there was a lost opportunity. The Agency recognized there
had been a problem with Ms. MacDonald. They were revisiting
some of those decisions.
We felt if they had cast a broader net maybe there were
others that they would have wanted to revisit as well. We are
listing them as potential, but we have not verified or
validated the extent of their involvement.
Mr. DeFazio. OK. I mean, wouldn't it be useful to sit down
with Mr. Waidmann since he was in such a key position and
discuss?
I mean, since now he is one of the two people who can refer
matters to the ethics review board, wouldn't it be useful to
know what his role and knowledge of those decisions was at the
time he approved them?
Ms. Nazzaro. No. I certainly agree that that is a next step
that would come after what we have----
Mr. DeFazio. OK. So have you asked to interview him?
Ms. Nazzaro. We have not yet, no.
Mr. DeFazio. OK.
Ms. Nazzaro. It was not something the Committee asked us to
do.
Mr. DeFazio. But you intend to do that?
Ms. Nazzaro. If the Committee asked us. As you know, GAO
works basically at the request of Congress so if we are asked
to do that we certainly could do that.
Mr. DeFazio. OK. Thank you.
OK. I am going to go back to my more parochial issue here
because I don't think that we quite got an answer, Mr.
Lohoefener. Sorry, sir. People have trouble with my name too.
What I was trying to say was that basically, as I read your
final recovery plan, that it really seems to me substantially
comparable to Option 7 back in the FEMAT, and I don't know if
you are familiar with Option 7, but Option 7 at least in my
layman's reading of that, and I will certainly ask Dr. Franklin
about this later, but I did have a brief conversation with him
this morning where I think he might confirm that we are
revisiting Option 7, and that had a very low probability of
recovery, Option 7 back then 20 years ago.
I guess my question is why we think basically reducing
habitat in much the way that was recommended in Option 7, which
was evaluated back then to not have a high probability, having
the second lowest out of the 10 options to leading to recovery,
why we are going there now when it was rejected 20 years ago?
Mr. Lohoefener. Thank you, Congressman. I have the
advantage. I can address you as Mr. Congressman, where you have
to pronounce my last name, so I appreciate that.
I do not know Option 7 so I can't speak to that directly. I
can tell you that the recovery plan we have in our hands today
is the result of 18 years, basically, of hard work by many
individuals to recover the owl--specifically over the last two
years, 12 peer reviews, a long, contracted peer review, five
months of public comment, and over 80,000 comments received.
The recovery team that was convened and the recovery team
that finalized the plan believed that the habitat that is
identified in the plan, if all the recovery actions are taken
and if the recovery action is successful, will be sufficient to
recover the owl over the next 30 years.
Mr. DeFazio. But we talked previously, and you have
received a critical report. You say you were working to address
some of those concerns from the draft critical peer review, but
the question is what will you do to accommodate other concerns
that were raised at that time or concerns that are being raised
now about your final recovery plan?
Mr. Lohoefener. A final recovery plan is a guidance
document--it is not regulation--which means we can take
comments on the guidance document any time, and we are happy to
do so.
I will convene an oversight group made up of state, Federal
and other interested private parties, whatever, to help guide
and implement the recovery plan. If at any time these comments
rise to the occasion of needing adaptive management of the
recovery plan we can do that, and if that adaptive management
warrants public comment we can put the amendment back out for
public comment and will do that.
Mr. DeFazio. OK. Just to note, it does say on page 74 of
the plan that the MOCA--I mean, I hate all these acronyms, but
anyway, the MOCA network--identified in this recovery plan most
closely resembles Option 7 and the 20 pair system described in
Noon & McKelvey, 1996.
Again, and I guess I will be asking Dr. Franklin, why we
would think today that with a species in decline and a plan
that was rejected back then, we would be going back and
essentially implementing something that had a lower
probability. But again, I will have to ask Dr. Franklin.
One other, and you may not be able to address this, and
this may be BLM, but as I understand the final recovery plan--
at least you can address this part--it is predicated to some
great extent upon the ongoing implementation of the Northwest
Forest Plan. Is that correct?
Mr. Lohoefener. The Northwest Forest Plan, like the IST
report, like the 1992 draft recovery plan, all played an
important part in the documents in the underlying information
that was used in the original draft of the recovery plan.
Mr. DeFazio. Right, but here is where I am getting into
this sort of circular problem. You have a new final recovery
plan. It is substantially based in looking at ongoing
implementation of the Northwest Forest Plan, yet the BLM is
proposing to substantially revise the Northwest Forest Plan.
So how do these things interrelate? I mean, should they
revisit their whopper to incorporate basically some of the
assumptions and concerns that the final recovery plan is based
on, which is the Northwest Forest Plan, or should you revisit
your final recovery plan given the fact that they are proposing
to substantially change the Northwest Forest Plan and see what
impact that would have on your final recovery plan? How do we
get out of this little loop here?
Mr. Lohoefener. Thank you, Congressman. I won't begin to
address the land management issues that the Bureau of Land
Management has to contend with out there. As you know, managing
public lands under a multiple use doctrine is an incredibly
complex job, and I am certainly not the person to speak to
that.
I would go back to my answer I gave you a while ago though
and say the forest plan addressed the needs of over 100 species
and were not specific to the spotted owl. The final recovery
plan is specific to the spotted owl, and we worked very
closely.
In fact, the help that BLM has given over the last three
years as we developed the recovery plan can't be acknowledged
enough in my opinion, so I am very confident that the land
management that BLM will take on the land will work to recover
the spotted owl.
Mr. DeFazio. OK. So eliminating habitat and old growth will
help with the recovery?
Mr. Lohoefener. I am sorry, Congressman. Would you restate
that?
Mr. DeFazio. Their whopper plan is substantially based on
substantial harvest of remaining old growth and so you are
thinking that harvesting remaining old growth habitat will help
with the recovery?
Mr. Lohoefener. Again, I won't speak to the land management
prerogatives of the Bureau of Land Management, but again I will
reiterate that I am confident that the Bureau of Land
Management's management, if successful, of the spotted owl will
lead to the recovery of the owl.
Mr. DeFazio. OK. Mr. Chairman, I know I am over time, but
there is a BLM person here too. Perhaps he could address this.
I just see we are getting into this little circle here
where you are making assumptions in the recovery plan which are
going to be contradicted by the actions of the BLM. As I
expressed earlier, I am very concerned that we are just going
to end up with a total injunction and an end to what is already
an anemic level of Federal timber harvest.
Perhaps the BLM witness, and please identify yourself. I am
over time, so if you could address that briefly? I know it is a
complicated question.
Mr. Shepard. It is complicated.
Mr. DeFazio. Just for the record identify yourself.
Mr. Shepard. Ed Shepard. I am the BLM State Director for
the states of Oregon and Washington.
You know, it is very complicated, but we have worked very
closely. Our biologists have worked very closely with them.
Under the plan revisions, we will be harvesting some old
growth. We will also be protecting a considerable amount of old
growth and growing some old growth.
Based on the recent recovery plan, we know that we have
some changes that we have to make in our plans to bring that
into compliance.
Mr. DeFazio. OK. All right. When will you be undertaking to
make those changes?
Mr. Shepard. We are doing it right now.
Mr. DeFazio. OK. So what is the time period?
Mr. Shepard. Well, we expect that we are going to have the
final out this fall.
Mr. DeFazio. OK. All right. Thank you.
Thank you, Mr. Chairman.
The Chairman. The gentleman from Texas, Mr. Gohmert?
Mr. Gohmert. Thank you, Mr. Chairman. I am not going to
need 11 minutes to make my comments and address my concern.
Earlier, a couple of speakers ago, we heard a recitation of
so-called facts. We know that this is the case. We know that
global warming is threatening polar bears. If we were back in
my old courtroom, then I would have had to sustain an objection
to someone assuming facts that are not in evidence because we
don't know all of those things.
It just seems like the U.S. Government may be the only
place where we take a look and we see that the facts are, as we
have already heard, that polar bears have gone from 10,000 to
12,000 in number to 25,000 in number, so that makes them
threatened. I mean, what other government would make that
analysis and come to that conclusion?
We are told that CO2 emissions are going to
destroy the planet. Mr. Chairman, it seems like the worst
source of CO2 emissions seems to be the Floor of the
House of Representatives. Maybe we do need to put more strict
controls on that.
But I am concerned about the premise of the hearing. It is
deeply troubling. The premise seems to be that there is a
problem in having political appointees who are accountable to
the taxpayer and who are put in place by the elected head of
the United States Government; that there is somehow something
wrong with having that person oversee and supervise the work of
career employees who are not directly accountable to the
taxpayer.
The fact of the matter is the political appointees from
Secretary Babbitt on down oversaw the work of scientists during
the Clinton Administration, just as political appointees do in
the current Administration.
I would also remind what I have read is that the Office of
Inspector General concluded that in the case of Julie
MacDonald, ``We discovered no illegal activity on her part,''
that there was no case presented that she ``harassed, bullied
and insulted Fish and Wildlife or FWS employees,'' so we seem
to be making some false assumptions even for the premise of the
hearing.
But when an Assistant Secretary weighs in on a decision it
means he or she is doing his or her job. Career biologists in
Fish and Wildlife Service are human beings. Like anyone else,
they have their biases, and on occasion they may ignore valid
policy objectives. This is where legitimate oversight by
supervisors comes into play. Someone has to do quality control,
especially when there are problems with bias, even among Fish
and Wildlife Service employees.
What we seem to be hearing from the Majority side of the
aisle today is that we should cede control to unelected career
government bureaucrats who are also prone to make mistakes and
who can ignore valid management objectives the Administration
or Congress might wish to implement.
But both career bureaucrats and Presidential appointees
simply need oversight, and that is why I have appreciated the
oversight hearings the Chairman has had, but to turn over every
four to eight years at the top of these massive agencies the
control is not a bad thing per se. The only way the system of
appointees every four to eight years with new Administration is
a bad thing is if we don't trust the majority of American
voters.
We are told by polls currently that they expect the
majority of voters in the United States to elect a Democrat as
President in November of this year. What the Majority of this
Committee seems to be saying is that they want to be on record
as saying they don't trust the judgment of those kind of people
that would vote for a Democrat for President.
I trust the American voter. I think they do a good job, and
I hate to sit idly by and have the majority here insult those
voters who may vote Democrat in the November election.
Thank you, Mr. Chairman.
The Chairman. The gentleman from Arizona, Mr. Grijalva?
Mr. Grijalva. Thank you very much. I would agree with my
colleague that there is no inherent bad thing about political
appointees, and I am looking forward to a new crop.
But I think those political appointees have to be guided by
some very fundamental principles and values having to do with
integrity, having to do with transparency and having to do with
the fact that the public's right to know on how decisions are
being made. I think once we follow those rules we wouldn't be
dealing with the situation.
I want to thank the Chairman. A year ago we had a hearing
based on the Inspector General's report dealing with
manipulation of scientific decisions on the Endangered Species
Act. It has been a year. Ms. MacDonald has resigned. Eight
decisions--maybe it should have been more--are being reviewed.
I think, unfortunately, the damage has been done. I say
that because the greatest allies that endangered species have
under the Act is science. That is the greatest ally, and the
route to recovery is guided by science and guided by the Act
itself. Once that gets manipulated and once that begins to be
part of the political decision and not the scientific decision-
making scheme then all things are lost.
So when we talk about the wolverine, the red nut bird, the
gray wolf, the Mexican wolf, the pygmy owl, on and on and on,
the jaguar, we have jeopardized them because now we have
allowed a different culture to run it.
And so, my question is a very general one. Correct me if I
am wrong. I think the change that needs to happen is not with
the Act itself, but with the Administration and the
implementation of the Act. I say that because I think we have
institutionalized now a culture that is about pleasing a
political outcome and not dealing with the reality of facts and
science. That has been institutionalized with regard to the
Endangered Species Act, and that change has to be fundamental
and thorough in the near future.
And so, my question is am I wrong, Mr. Laverty, if I may?
Am I wrong in assuming that we are not really going to make any
progress until that massive institutional change and culture is
changed?
I really think what we are talking about today--process,
specifics--is good and healthy. I think the overall culture
needs to be changed tremendously with regard to the application
of the Act. Am I wrong in that assumption or in that conclusion
to be more exact?
Mr. Laverty. Mr. Grijalva, I believe--and I can share this
with absolute confidence--that if you were to ask any scientist
in the Fish and Wildlife Service or the United States
Geological Service about the integrity of science you would
find that today the answer would be that they believe the
integrity of science is whole.
I believe I can share that with you because I have
established in my own set of principles and values
conversations with Director Dale Hall and his folks that I
value the integrity of science, and I am going to do, as I
shared with you in my earlier testimony, all I can to ensure
the integrity of science.
Now, as I pointed out, I think it is very, very important
to be able to have questions about clarity of science. That
should be OK. That should not be viewed as a threat. That
should not be viewed as a negative thing. It should be
absolutely important to make sure that when we come together
with the best science that that stands the test of integrity.
The fact that you question me is good. We need to be able
to do that, and I think that same thing is true for science. I
believe that the actions that have been taken, as I mentioned,
in the short time that I have been here--we have four listings
warranted, two not warranted. Those are based on absolute
integrity of science. We have come together with nine
substantial 90-day findings, and I would venture to say that if
you ask anyone to come and look at that it would be based
absolutely on science.
I want to go back and clarify perhaps some of the points
that were made regarding Brian Waidmann, Chief of Staff. Brian
Waidmann reviews every Federal Register listing that comes out
whether it is Fish and Wildlife Service, Park Service, USGS,
anything.
Brian Waidmann initials and reviews that, and I think some
of those reviews are to make sure that we are, in fact, clear
that the pieces all connect together. That shouldn't be again
viewed as a negative thing, but I think it is a very important
piece.
One of the things, if I could just follow up while I----
Mr. Grijalva. Well, let me go back to my original question,
if I may.
Mr. Laverty. Sure.
Mr. Grijalva. My earlier question. When I talked about the
scientific code of conduct that was implemented by Hall, it
doesn't apply to yourself or anybody else in your office, and
the question I asked then, shouldn't it so that we have a level
of consistency on the integrity question?
Mr. Laverty. Mr. Grijalva, I would be happy to share with
you the letter that I sent to the Department folks, to both
Fish and Wildlife Service and the Park Service, that
established my personal code of conduct and how I was going to
operate, how I was going to establish that set of principles
for my staff.
I believe that we have a very, very solid platform to work.
We can assure that.
Mr. Grijalva. My time is up, Mr. Secretary, and I
appreciate your honesty and your response, and I yield back.
Mr. Laverty. Thank you.
The Chairman. The gentlelady from California, Ms.
Napolitano?
Mrs. Napolitano. Thank you, Mr. Chair.
I would like to talk to Mr. Laverty in regard to the
petitioning under the ESA. I guess many things have not been
corrected, and apparently last week the long-fin smelt in the
California Bay-Delta was deemed substantial nine months after
it was petitioned.
What assurances do we in this Subcommittee have that the
status review for the smelt will now proceed efficiently and,
moreover, be based on the best available science, and will it
be completed in the next 12 months, which then goes to
improving the efficiency of the 90-day petition, and how will
Fish and Wildlife ensure the new delta smelt stands up to court
scrutiny, the buyout?
Mr. Laverty. Thank you for that question. I actually had a
chance to spend some time with Secretary Cristman and Regional
Manager Steve Thompson talking about the delta smelt and how
that science and the biological opinions come together.
One of the things that has to happen is we have to complete
that biological opinion, and I understand that part of that now
is with the Bureau of Reclamation. I just found that out this
morning, so I will follow up on that on the delta smelt.
Mrs. Napolitano. How long will that take?
Mr. Laverty. The long-fin. Was that the one that we just
listed? In a couple months I think we are going to have that
one out.
Mrs. Napolitano. Are we sure it is a couple months and not
a year or more?
Mr. Laverty. Absolutely. I can assure you. I am getting
poked. Yes.
Mrs. Napolitano. May I ask that the Committee be given the
information as soon as possible?
Mr. Laverty. Yes, ma'am.
Mrs. Napolitano. And if you will proceed with the rest of
the question about the 90-day approval of the implementation?
I am sorry. Should we be concerned with the delays on other
decisions, such as the 12-month status reviews in Section 7
consultations--listing and delisting and others?
Mr. Laverty. I believe part of our conversation earlier
focused on the findings from the GAO in terms of guidance to
the field on the 90-day listing, and I believe we have the
mechanism in place and that is currently under review. We
should have that out fairly quickly.
Mrs. Napolitano. What about the new delta smelt biological
opinion? Will it stand up to court scrutiny?
Mr. Laverty. I can tell you it will be based on the best
available science.
Mrs. Napolitano. OK. Ms. Nazzaro, on page 22 of your report
it says: ``Furthermore, Service officials also noted recovery
plans are fluid documents, and the plan's respective criteria
can be updated as new threat information about a particular
species becomes available.''
Were you able to check the veracity of the Service's
statement? Is that true that the recovery plans are regularly
revised?
Mr. Malcolm. We can't say specifically if they were
regularly revised, but a number of the species we have examples
of in our report the recovery plans had been updated, so it can
happen.
Again, we also note that a lot of the activity at least on
the listing side of the house is litigation driven, so there
obviously is a prioritization process that happens. They do
have authority to revise the plans. It may not happen----
Mrs. Napolitano. Why the litigation? Based on what?
Mr. Malcolm. The example you just used on a late 90-day
finding. So if the finding is too late there could be
litigation brought to say----
Mrs. Napolitano. Which brings it back to are we ensuring
that we are going to expedite some of those petitions?
Mr. Malcolm. Right. Yes.
Mrs. Napolitano. Avoid litigation.
Mr. Malcolm. Well, some of the litigation involved is over
missed deadlines, but again there are so many species and so
many decisions and not listing/delisting, but critical habitat
and recovery plans and all those types of actions, so doing
everything for every single species on time obviously would be
challenging for the Department.
Mrs. Napolitano. Well, according to the review of the
recovery plans in the Fish and Wildlife database, it shows that
only 22 recovery plans have been formally revised in the last
12 years and 30 in the last 20, and of the 22 in the last 12
only 13 have been formally completed and made final. The
average length is 17 years.
Ms. Nazzaro. Certainly one thing that we did hear was that
litigation does take a lot of time and so a lot of the other
priorities that the Service would set, they are distracted from
that because of litigation.
Mrs. Napolitano. But if you have litigation that is causing
the delay because it is not done--how would I say--
expeditiously, within the period required, wouldn't that solve
some of the problems?
Ms. Nazzaro. What we are hoping is we have not reviewed the
draft guidance that Mr. Laverty discusses, but we anticipate
that once that guidance gets issued it is going to clarify how
the Service biologists go about reviewing these 90-day
petitions, and it would certainly expedite the process.
Mrs. Napolitano. Could you tell me how many of your
revision plans or actually--I am sorry. I am getting my
thoughts together. Of the litigated ones are based on late
filings or extended filings? Is there any amount, percentage?
Mr. Laverty. I am sorry. I don't know what that answer
would be. It would be substantial.
Mrs. Napolitano. Would you find that out for us and let us
know, because then we can understand that maybe this is part of
the answer.
Mr. Laverty. Yes, ma'am.
Mrs. Napolitano. Thank you, Mr. Chair.
The Chairman. The gentleman from California, Mr. Costa?
Mr. Costa. Thank you very much, Mr. Chairman, for this
important and timely hearing.
I have a specific question that follows on the one
Chairwoman Napolitano asked with regard to the Sacramento-San
Joaquin River Delta system, and then I have a more general
question as it relates to the Endangered Species Act, which is
the subject that we are hearing today.
As it relates to the specific question involving the issues
of listed species in the Sacramento-San Joaquin Delta, which is
the largest delta region on the West Coast that has numerous
problems I would argue as it relates to the multi-purposes and
the multi-facets of that delta river system that provides not
only transportation, but a source of water, a source of fishery
and critical habitat for the West Coast and for California
particularly.
As it relates to the smelt issue that Congresswoman
Napolitano was talking about, when these various scientific
efforts are being pursued to deal with the various causations
how are we attempting to weigh the factors, the other factors
that are causing the degradation of the fisheries--not only the
smelt, but the salmon and the other?
When we try to weigh the factors in of invasive species,
when we try to weigh the factors of the impacts of tremendous
urbanization that has taken place over the last two decades in
the area, when we try to weigh the fact that there is over
1,600 pumps that are within the region that are unscreened--we
have pumps throughout the country that are screened--and that
we deal with diversions of water upstream as well besides the
exportation, how do you weigh all those factors in?
Mr. Laverty. Mr. Costa, I believe the question you framed
captures the complexity of the challenges that not only the
Fish and Wildlife Service faces as we look at the recovery of
species, but it capitalizes and captures the essence of how do
we work with multiple jurisdictions to deal with these kinds of
issues? I know from my conversations with resource
professionals on the ground that this is an incredibly vexing
problem for them.
I would have to say there is not any magic that is just
going to pop out and we are going to find an instant situation.
The delta is a classic example I think of the complexities that
we face. You know, not only is that water important for fish,
but it is also important for the commerce and the economy of
California.
Finding that balance I believe is going to be our challenge
working together, and I think that is why some of the
conversations that we have had with the Governor's office, as
well as with municipalities and agencies that are all impacted,
that is where we are going to have to find that balance.
Mr. Costa. Yes, I know, but the balance is always the
challenge.
Mr. Laverty. Absolutely.
Mr. Costa. You know, I want to ask a broader question, but
it is related to this. I mean, regardless of our philosophical
discussions, we all agree that good science ought to apply.
The problem is that scientists focus in their domain and
their effort, and they have varied degrees of expertise, but
then not withstanding the science there are always the
tradeoffs. It is not up to the scientists necessarily to
determine the social tradeoffs because they involve social,
economic and other ethos that we all have that are similar and
common and different.
Therein lies when you set the balance of the values in
terms of trying to strike that balance I am not so sure it is
fair to ask the scientists to do that.
Mr. Laverty. I would agree, and I believe that setting a
policy call is not the role of the scientist.
Mr. Costa. Right.
Mr. Laverty. The scientist is to bring together the best
available science to that policy table and then policymakers
then weigh those tradeoffs, if you will.
Mr. Costa. Well, then that brings me to the question, and I
don't know if I have enough time here. With the title, ``Danger
of Deception: Do Endangered Species Have a Chance?'', it just
seems to me that we ought to back up a little bit and try to
figure out when we deal with risk assessment versus risk
management what in our day and age today is the art of the
possible.
I mean, I can assure you that if we didn't have the 38
million people that live in California today, not to mention
the other people that live in Oregon and Washington, we could
do a whole lot to restore the environment and the riparian
systems and everything else because we wouldn't have the
demands that all the people place on those important resources.
But the problem is we do have 38 million people living in
California, and we have millions of people living in Oregon and
Washington, and they share the same resources with all the
other important species that we try to coexist with.
We never, it seems to me, make an evaluation or attempt to
try to make the judgment because before people ever set foot on
this continent, I mean, you had species that went extinct. It
is the natural evolution of things, but they went extinct based
upon various climate conditions and other predatory species and
the like.
Now, we are the big species here, and we are very predatory
I would argue, and therefore we impact all the other species,
but we seem to have this notion that we can have it both ways,
that we can turn the clock back 150 years or whatever time you
choose when mankind wasn't impacting all the species.
I am not so sure you can have it both ways, but I don't
think we ever have that conversation or that intellectual
discussion, which is what I think we ought to have in terms of
what the art of the possible is. That was an editorial. I don't
know. Do you folks ever have these policy discussions?
Mr. Laverty. Every day. I don't mean to be flippant in that
response, but that is really the fundamental issue that we face
as we bring together the science of what we know about species
in our environment and how do we then engage in helping make
these critical decisions as it relates to policy calls on our
needs as a society and how do we provide that long-term quality
for what this country is all about.
Mr. Costa. And it is the art of the possible. If you will,
Mr. Chairman, give me 30 more seconds, I mean, just to add to
this point. We have made a determination after 18 years plus of
lawsuit on the San Joaquin River to reach an out-of-court
settlement agreement.
I am not going to put a value on as to whether it is good,
bad or indifferent because everybody has a different
perspective, but the parties, both the plaintiffs and the
defendants, decided after 18 years they were going to quit
suing one another to attempt to restore a species on the San
Joaquin River on 47 miles of the river that has not flowed
since 1964. It is a very noble experiment at a cost of
somewhere between $300 and $600 million. We don't know what the
cost will be.
And so we can do a lot of things, but we also have to
factor in what the costs and the tradeoffs are. We hope in the
period of the 15 years during the implementation of this
agreement that we will be successful, but we don't know that we
will be. Yes?
Mr. Laverty. Just perhaps one last comment. I think you
framed it very, very well in terms of the importance of good,
hard, quality science. That becomes the foundation for many of
these conversations.
That is exactly what we are trying to do is make sure that
we have that kind of science that has that integrity that
policymakers can understand what the tradeoffs might be.
Mr. Costa. Thank you, Mr. Chairman.
Mr. Laverty. Thank you for your comments.
The Chairman. The gentleman from Texas, Mr. Gohmert?
Mr. Gohmert. Thank you, Mr. Chairman. I think our friend,
Mr. Costa, did a beautiful job of articulating the real balance
necessary to have proper governance over this country.
I was affected by my friend from California Ms.
Napolitano's discussion about the long-finned smelt, and I
would like to yield to get an answer to a question regarding
this balance.
It is my understanding that if the long-finned smelt, this
little fish, is actually determined to be or classified as
being an endangered species it will be necessary to hold more
water up in the delta region, which would apparently deprive a
lot of Southern California from much needed water.
I am curious. In the consideration of trying to preserve
species, which we would all like to do, should any policy
consideration be given to the adverse effects on the humanity
there in Southern California? I yield to the gentlelady.
Mrs. Napolitano. Thank you for yielding. I can tell you
there is an ongoing battle in regard to allowing water to flow
naturally down from Northern California. This is a north/south
issue.
The fact that there have been lawsuits and much controversy
over ESA and its effect on the population, let me assure you
that both sides, no matter what, we need to ensure that we
protect some of that. I am even discussing in some areas if
there is endangered species why are we not having hatcheries to
be able to ensure that the species survive? There is an issue
there with the environmentalists, which I can understand, but I
would rather have the DNA be a little bit watered down rather
than lose it.
Protection of people? It depends because I can tell you in
some areas you can be in the lowlands and look up and there is
a boat going by up in the upper regions. You see it up high,
the levees. One of those earthquakes is going to come down and
all of that land is going to be affected. Salt will be intruded
into the drinking water. It will ruin a lot of California's
economy. The rest of the nation is going to suffer.
Now, do we protect? Yes, we have to protect much like we
want to protect ourselves, the human race. There are many
things we need to do. How we do it, working cooperatively, and
this is what Jim was alluding to, is they decided that it is
better to work with them because it does help the ecosystem.
With that I would like to turn it over to Jim to finish
that up.
Mr. Gohmert. Well, let me reclaim my time for a moment. It
is my understanding though, and you mentioned the allowing of
the natural flow of water, but it is my understanding if the
long-finned smelt were classified as endangered then it would
probably be required to have an unnatural restraint of water in
order to help the long-finned smelt, and it would be the
unnatural restraint of water flow that would so adversely
affect portions of Southern California.
I would be glad to yield to my friend, Mr. Costa, if he has
a comment. You really did a beautiful job of articulating the
difficulty there.
Mr. Costa. Well, thank you. I mean, we in California made a
promise to Chairman Rahall a couple years ago not to bring
California water problems to the Committee, but they are
problems.
Mr. Gohmert. Yes.
Mr. Costa. I appreciate your interest. But I really think
they are reflective of water problems that we are going to face
around the country and around the world in the 21st Century,
and maybe if we can do a better job in California than we have
in terms of solving some of them maybe that will be helpful to
other parts of the world.
The smelt specifically that you asked the question of. If
they are listed and there is a portion of the listing, the
process, and that was the questions we were referring to, could
cut back as much as an estimated 70 percent of the water supply
to Southern California and as much to the area that I live in
and that many of my colleagues do where we farm, so it is a
very serious issue in terms of the ability to export water
south of the delta.
From a standpoint of geography and plumbing, you wouldn't
have designed California. We have two-thirds of the population
living where there is very little water, in Southern
California, and their water supply comes from the Colorado
River; it comes from the east side of the Sierra; it comes from
the north.
Eighty percent of the developed water resources in
California agriculture uses. We have picked a lot of low-
hanging fruit in the last two decades to conserve water. Water
is not cheap in California I would argue any more.
But we have a host of competing challenges on the delta
smelt that you made reference to. For example, striped bass are
not native to the delta. They are an eastern fish. They were
introduced in the 1920s as a good game fish. They are a very
predatory fish, and they eat smelt, which is the food for the
salmon. They also eat juvenile salmon. Up until recently
actually we still sold striped bass stamps, fishing stamps, to
increase the propagation of striped bass, so these are the
internal conflicts that drive us nuts.
Let me just close with one piece of advice when you wade
into the water of the West. Mark Twain, I think, had it right
over a century ago when he said, as a reporter in the West, it
was clear to him that whiskey was made for drinking and water
was made for fighting, and we are still fighting over those
water resources today.
Mr. Gohmert. OK. Thank you.
Reclaiming my time--well, actually it has expired--if I
could just say, we certainly want to work with all states with
water problems, and I hope that we can also, at some point,
have a hearing on the invasive plant species that are about to
take over waterways all over the South. We are about to lose a
lot of natural----
Mr. Costa. If the gentleman would yield?
Mr. Gohmert. Sure.
Mr. Costa. I think invasive species, period. I would not
limit it to plants.
Mrs. Napolitano. Would the gentleman yield for a second?
Mr. Gohmert. Sure.
Mrs. Napolitano. One of the things we are battling right
now is the quagga mussel, which is eating some of the food from
the fish----
Mr. Costa. Right.
Mrs. Napolitano.--which we have yet to find the solution
to, and I think working cooperatively we may be able to have
the R&D to be able to at least begin to address it because that
is clogging all your pumps. Not only that; it is taking some of
the natural food element of a lot of the fish.
Mr. Costa. Right.
Mrs. Napolitano. So it is a series of things, not just one
rather. Thank you, sir.
Mr. Gohmert. OK. Thank you, and thank you, Mr. Chairman. It
sounds like you have some Members who would love a hearing on
invasive species.
The Chairman. It sounds like it, but I think right now the
panel needs to be relieved so I will thank the gentlemen and
ladies that appeared before us today for your expertise and
your patience and all your help to this Committee and say that
you are excused. Thank you.
The Chair will call the next panel, Panel II, composed of
Dr. Scott D. Kraus, the Vice President of Research, New England
Aquarium; Dr. Jerry F. Franklin, Ph.D., College of Forest
Resources, University of Washington; Dr. Francesca T. Grifo,
Ph.D., Senior Scientist and Director, Scientific Integrity
Program, Union of Concerned Scientists;
Scott Hoffman Black, the Executive Director of the Xerces
Society for Invertebrate Conservation; David R. Parsons, a
Science Fellow at the Rewilding Institute; and Larry L. Irwin,
Ph.D., Principal Scientist, National Council for Air & Stream
Improvement.
Is everybody still here? The Chair will remind all
witnesses we do have your prepared testimony and, without
objection, it will be made part of the record as if actually
read. You are encouraged to summarize your prepared testimony.
We will begin with Dr. Kraus. Dr. Kraus, you have been
recognized to proceed first.
STATEMENT OF SCOTT D. KRAUS, PH.D., VICE PRESIDENT
OF RESEARCH, NEW ENGLAND AQUARIUM
Mr. Kraus. Thank you, Mr. Chairman. We are going to move
into the ocean.
I am from the New England Aquarium. I have been running a
research program on North Atlantic right whales for almost 30
years, and I would like to briefly talk about those animals and
the issues around the ship strike rule that has been proposed
by NOAA.
The North Atlantic right whale currently numbers less than
400 animals, making it one of the most endangered of the large
whales. In the western North Atlantic, they are found along the
entire East Coast of North America. Calving occurs in the
coastal waters of the southeastern U.S. during the winter, and
the migratory zone is along the Mid-Atlantic. In the summer,
spring and fall, right whales are found in the Gulf of Maine in
several habitats.
Historically, the species was hunted nearly to extinction,
and despite protection for 70 years, the right whale population
remains at very low numbers. Today, the primary reasons for
right whale losses are accidental kills by ships and fishing
gear.
Since 1999, at least 30 right whales have been hit by
ships, leaving 15 dead, four seriously injured and likely to
die, and 11 with injuries. Another 37 right whales have been
entangled in fishing gear, six of which were fatal, and another
six had potentially fatal injuries. In addition to the
documented deaths, an average of six right whales per year
disappear from the population and are presumed dead, adding to
the mortality rates.
The Department of Commerce's National Marine Fisheries
Service is the agency responsible for right whales under the
ESA and the MMPA. The Agency is working hard with the research
and fishing communities to solve the problem of entanglements
in fishing gear, and more work is needed in this area.
However, the problem of ships killing whales is well
defined, and the Agency's proposed rule to slow ships is a
solution that will work. There have been a number of questions
about the science posed by the Office of Management and Budget,
the World Shipping Council, as well as some to one of my staff
by the Council of Economic Advisors. I would like to address
those questions briefly.
First, the evidence that high ship speeds kill whales. Many
scientific studies have been done to assess the role of speed
in ship kills of large whales and in particular for right
whales. In my submitted testimony, I have provided the relevant
graphs of speed versus the probability of collision, as well as
a comprehensive list of all the scientific publications on this
topic.
In all cases, scientists have used existing data to model
the probability of lethal injury to a right whale from ships
going at different speeds. When you add them all together, the
cumulative results of all of these studies are conclusive. No
matter which analytical technique is applied, increased
shipping speed carries increased risk of death and serious
injury to all large whales.
Questions have been raised about whether ship size matters
to the danger posed to whales. It turns out that it doesn't
matter very much when the difference is large. Ships are, let
us say, somewhere between 5,000 and 50,000 dead weight tons,
and a large whale might only be 40 dead weight tons.
For comparison, imagine a vehicle colliding with a
songbird. Whether the vehicle is a motorcycle or a car or a
train, the bird will probably survive a collision of five to 10
miles an hour. However, a collision with any of those vehicles
at 30 miles an hour or 50 miles an hour, the bird is likely to
die. The difference in mass doesn't matter as long as the
vehicle is substantially larger than the bird. Only speed
matters.
The same principles apply to whales. Because whale to ship
size differences are large, the severity of damage to a whale
in the event of a collision with a ship is primarily a function
of speed. Therefore, speed reductions will reduce the risk of
fatal collisions between all large ships and whales.
Now, what is the evidence that many of these different ship
types are involved? Well, there has been a review by a couple
of National Marine Fisheries Service scientists, and it turns
out that just about every large ship around the world that we
can think of in terms of types have been involved--Navy
vessels, container, cargo ships, freighters, whale-watching
vessels, cruise ships, Coast Guard vessels, ferries, dredges,
et cetera. The data confirm that all types of vessels are
involved in collisions with whales.
What does NMFS need to carry out its mandate under the
Endangered Species Act for right whales? They have a statutory
obligation under the Endangered Species Act to take actions
that enable the recovery of right whales. It needs the support
of Congress to get this rule in place.
NMFS also needs appropriate funding levels from Congress to
monitor the population to determine how many animals are being
lost to human activities, and which management measures are
working. Failure to support NMFS' efforts is a disservice to
the industries that are being regulated and will undermine
their ability to ensure the survival of the North Atlantic
right whale.
In conclusion, fast ships kill large whales. Slowing ships
will, one, reduce the probability of a fatality should an
encounter occur and, two, give whales the time to evade
oncoming vessels. Ship strikes of whales involve all ship
types, all whale species and occur all along the East Coast.
The National Marine Fisheries Service has taken the
appropriate approach in using the 10 knot speed limit. This
speed limit considers economic impact, safe navigation and
benefit to right whales in a fair and well-researched manner.
There is no scientific justification for further delays in
the proposed rule to seasonally slow ships in right whale
habitats and migratory corridors along the East Coast of the
United States. Thank you.
[The prepared statement of Mr. Kraus follows:]
Statement of Scott D. Kraus, Ph.D., Vice President for Research, New
England Aquarium, Boston, Massachusetts
The North Atlantic right whale currently numbers less than 400
animals, making it one of the most endangered of the large whales. In
the western North Atlantic, individual right have been observed from
the Gulf of Mexico to the Gulf of St Lawrence, but most are found
seasonally in one of five known habitats. The only calving ground is in
the coastal waters of the southeastern U.S. during the winter months.
The migratory corridor for all right whale mothers and calves is the
coastal zone of the U.S. between Florida and Massachusetts. In the
spring, aggregations of right whales are present in the Great South
Channel (east of Cape Cod) and in Cape Cod and Massachusetts Bays. In
the summer and fall, right whales are observed in the Bay of Fundy,
between Maine and Nova Scotia, and in an area 50 km south of Nova
Scotia called Roseway Basin. Aerial surveys also have recently
discovered winter-time aggregations in the middle of the Gulf of Maine.
Historically, this species was hunted to near extinction, and,
despite protection for 70 years, the right whale population remains at
very low numbers. Today, the primary reasons for the population's slow
recovery are the accidental kills by ships and fishing gear. Since
1999, at least 30 right whales have been hit by ships, leaving 15 dead,
4 seriously injured and likely to die, and 11 with injuries (Table 1).
Another 37 right whales have been entangled in fishing gear, of which 6
were fatal, and 6 caused potentially fatal injuries. In addition to the
documented deaths, an average of 6 animals per year (range: 1--11) have
disappeared from the population and are presumed dead, adding to total
mortality rates.
Shipping and entanglement deaths are added to natural mortality,
and several population models have shown that this population was
declining during the 1990's (Caswell et al. 1999; Fujiwara and Caswell
2001). Fujiwara and Caswell's projections indicated that those trends
would drive the North Atlantic right whale to extinction in
approximately two centuries. However, those same models suggested that
saving just two females per year could reverse this trend. These
circumstances confirm that this is a critical period for right whales
and that focused and dedicated efforts will be required if we are to
assure the recovery of the North Atlantic right whale population.
The NOAA National Marine Fisheries Service (NMFS) requirement for
recovery is a population increase for a period of 35 years at an
average rate of increase equal to or greater than 2% per year.
Preliminary analyses indicate that this group of right whales has had
an average growth rate over the last two decades of about 1%. Recent
calf counts have increased slightly, although increases in mortality in
recent years may have offset those gains.
The Department of Commerce's National Marine Fisheries Service is
the responsible agency for right whale conservation under the ESA and
the MMPA. The agency is working hard with the research and fishing
communities to solve the problem of entanglements in fishing gear, and
more work is needed in this area. However, the problem of ships killing
whales is well-defined, and the NMFS proposal to slow ships is a
solution that will work. There have been a number of questions about
the science posed by the OMB, the OIRA, and the World Shipping Council,
including questions posed directly to a colleague on my staff by the
Council of Economic Advisors. I would like to address these questions
briefly.
Evidence that High Ship Speeds Kills Whales
Many scientific studies have been done to assess the role of speed
in ship kills of large whales, and 5 studies have specifically
evaluated this for right whales. These studies (Vanderlaan and Taggart
2007; Pace and Silber 2005: Laist et al. 2001: Kite Powell, et al.,
2007; Vanderlaan et al., 2008) used different analytical approaches,
but all reached the same conclusion that vessel speed plays a role in
the level of severity of a strike. In addition, a Knowlton et al (1998)
report titled The Hydrodynamic Effects of Large Vessels on Right
Whales: Phase Two concluded that in none of their simulations was there
a situation where a slower moving ship increased the risk of collision.
A slower ship has lower hydrodynamic forces and is thus safer for a
whale trying to take avoidance action.
To summarize the results of all of these studies, I have provided a
single graph from each of the four quantitative papers in the following
pages, and offer a summary statement from many of the papers on whales
and shipping here. The cumulative results of these multiple studies are
conclusive--no matter which technique is applied, increased shipping
speed carries increased risk of death and serious injury to all large
whales.
Laist et al., 2001 ``Collision accounts compiled here suggest that
serious injuries to whales may occur infrequently at vessel speeds
below 14 kn and rarely at speeds below 10 kn.''
Jensen and Silber, 2003 ``All vessel classes are represented in our
database, but it appears generally that relatively large and relatively
fast moving vessels are most often involved.''
Pace and Silber 2005 ``We found strong evidence (P=0.0025) that the
probability of death or serious injury increases rapidly with
increasing ship speed (Figure 1).''
Vanderlaan and Taggart 2007. ``Notably, it is only at speeds below
11.8 knots that the chances of lethal injury drop below 50% and above
15 knots the chances asymptotically increase toward 100%.''
Kite-Powell, et al., 2007 ``Model results suggest that more than
half of right whales located in or swimming into the path of an
oncoming ship traveling at 15 knots or more are likely to be struck
even when they do take evasive action.''
Vanderlaan and Taggart, 2008 ``Only the reduced vessel-speed option
will decrease the likelihood of a lethal injury should an encounter
occur.''
In the following graphs, scientists have used the existing data to
model the probability of lethal injury to a right whale from ships
going at different speeds. In the first one, Vanderlaan and Taggart
(2007) show that the probability of fatal injury rises rapidly after 8-
10 knots and approaches 100% above 18kts. In the second (Vanderlaan et
al., 2008), they add the probability of a whale-ship encounter to the
original data to show the combined likelihood of a fatal collision (in
color, where red is bad (fatal), and blue is good (not fatal)).
[GRAPHIC] [TIFF OMITTED] T2492.046
In the next graph, Pace and Silber (2005) modeled a slightly larger
dataset without binning into speed categories, and obtained nearly the
same results as Vanderlaan and Taggart (2007)(shown above). Their
analysis shows that the probability of mortality or serious injury
increases dramatically above 7 knots.
[GRAPHIC] [TIFF OMITTED] T2492.047
Despite some confusion on the part of the World Shipping Council
and the CEA, ship mass does not matter much when the difference between
the ship and the whale is large. From a shipping perspective, most
ships are much more massive than a whale (5000-100,000 DWT vs 40 DWT).
As C. Taggart points out (in lit. Aug 31 2007 to S.E. Dudley OIRA) the
situation is similar to a vehicle colliding with a song bird. Whether
the vehicle is a motorcycle, a car, a bus, or a train, the bird will
probably survive a collision of 5-10 miles per hour. However, in a
collision with any of those vehicles at 20-30 miles per hour, the bird
is highly likely to die.
Thus mass (size) does not matter as long as the difference between
the animal and the vehicle is large. The severity of damage to a whale
in the event of a collision with a large vessel is primarily a function
of speed. Therefore, regardless of ship size, speed reductions will
reduce the risk of fatal collisions between ships and large whales.
Note that most of the results discussed above are predicated upon
passive whales, in other words, a whale that does not attempt to move
out of the way of a closely approaching ship. However, Kite-Powell et
al. (2007) analyzed close approaches (less than 500 m) of ships to
right whales, and found that a majority of whales do attempt evasive
actions. Although the sample size is limited, evasive actions increased
as proximity to the ship increased. Taking whale behavior into account,
Kite-Powell and colleagues modeled ship/whale encounters at various
speeds and produced the following graph, which shows the probability of
collision given different speeds and different ships. Although this
does not predict fatal injuries, it is consistent with the previous
models which show that the risk of collision between ships and whales
increases with speed. These results indicate that slowing ships to a
speed of ten knots gives whales an increasing amount of time to avoid
collisions by taking evasive action.
[GRAPHIC] [TIFF OMITTED] T2492.048
Evidence that All Ship Types are Involved
Jensen and Silber (2003) provide detailed information of the vessel
types involved in strikes worldwide. ``Of the 134 cases of known vessel
type, there are 23 reported incidents (17.1%) of Navy vessels hitting
whales, 20 reports (14.9%) of ship strike for container/cargo ships/
freighters, 19 (14.2%) reports of ship strike for whale-watching
vessels, and 17 reports (12.7%) for cruise ships/liners (Figure 5).
Sixteen reports of ship strike (11.9%) are attributed to ferries. Nine
cases of ship strike (6.7%) are reported for Coast Guard vessels and
eight cases (6.0%) for tankers. Recreational vessels and steamships
were each responsible for seven collisions (5.2%) in the database,
while fishing vessels were responsible for four records (3.0%) of
strike. One collision (0.75 %) was reported from each of the following:
dredge boat, research vessel, pilot boat, and whaling catcher boat.''
These data confirm that all types of vessels are involved in
collisions with whales, although care should be taken in interpreting
these numbers. Large ships (e.g. container ships, tankers, and cruise
ships) may not be aware that a collision with a whale has occurred and
thus do not report the incident. Captains of ships of all sizes are
under no obligation to report collisions and may not do so due to
apathy or fear of legal consequences. The high percentage of Navy and
Coast Guard collision reports is likely due to standardized military
and government reporting practice rather than an actual higher
frequency of collisions relative to other ship types. Both federal
agencies are actively involved in large whale protection programs and
reporting struck or dead whales to the National Marine Fisheries
Service are standard operating procedures.
Evidence that Ship Kills are Impacting All Large Whales
NMFS has done a thorough job of keeping track of serious injury and
mortality events (Nelson, et al. 2007). From 2001-2005, NMFS verified
292 large whale mortalities and determined that 26 were due to
entanglements and 27 were the result of ship strikes. The cause of
death could not be determined for 223 (76%) of the carcasses (Nelson
2007), since animals floating at sea are typically not retrieved for a
necropsy (except right whales). Because of the endangered status of
right whales, NMFS has supported the retrieval and necropsy all right
whale carcasses when feasible. From 2001 through 2007, a total of 31
right whale carcasses have been documented. Fourteen of these carcasses
were towed to shore, 10 were found on the beach, and seven were
unretrievable. Of the 14 carcasses retrieved, nine (64%) died as the
result of ship strike. If we applied this percentage to all large whale
carcasses that were not retrieved (223 animals), there may have been as
many as 142 large whales that died as the result of a vessel strike in
that five-year timeframe. This suggests that all large whale species in
the near coastal waters of the U.S. are at risk from ship strikes and
would be afforded protection from this rule.
What NMFS Needs to Carry Out Its Mandate Under the ESA for Right Whales
NMFS has the statutory obligation under the Endangered Species Act
to take actions that enable the recovery of right whales. The NMFS
proposed rule has the weight of multiple independent scientific studies
behind it. Other agencies should review the proposed rule for economic
and other consequences, but should not attempt to second guess the
science.
Reducing right whale deaths is critical to protecting the species,
yet federal funding for right whale research was halved in 2006,
eliminating support for necropsies, entanglement mitigation, acoustic
surveys, and photo-identification surveys, thereby negating the ability
to monitor population health, survival and reproduction. Without these
ongoing research efforts, it will be impossible to determine how many
animals are being lost to human activities, which management measures
are working, and what can be done to support the recovery of the
species. This data loss is a disservice to the industries that are
being regulated to reduce human-caused kills of this species, and it
will hamper NMFS' ability to assure the recovery of the North Atlantic
right whale under the Endangered Species Act.
Conclusion
Fast ships kill large whales. Slowing ships will 1) reduce the
probability of a fatality should an encounter occur, and 2) give whales
the time to evade oncoming vessels. Ship strikes of whales involve all
ship types, all species, and occur in all waters of the East Coast.
NMFS, as the agency responsible for mitigating right whale mortality by
law, has taken the appropriate approach in using the 10-knot speed
limit. This speed limit considers economic impacts, safe navigation,
and benefit to right whales in a fair and well-researched manner. There
is no scientific justification for further delays in the proposed rule
to seasonally slow ships in right whale habitats and migratory
corridors along the East Coast of the U.S.
References Cited
Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival
probability threatens the North Atlantic right whale.
Proceedings of the National Academy of Sciences 96:3308-3313.
Fujiwara, M., and H. Caswell. 2001. Demography of the endangered North
Atlantic right whale. Nature 414:537-541.
Jensen, A.S. and G.K. Silber. 2004. Large Whale Ship Strike Database.
NOAA Technical Memorandum NMFS-OPR
Kite-Powell, H.L., A.R. Knowlton, and M. Brown. 2007. Modeling the
effect of vessel speed on Right Whale ship strike risk Project
report for NOAA/NMFS Project NA04NMF47202394
Knowlton, A. R., F.T. Korsmeyer, B. Hynes. 1998. The hydrodynamic
effects of large vessels on right whales: Phase two. NMFS
Contract No. 46EANF60004
Kraus, S.D., M.W. Brown, H. Caswell, C.W. Clark, M. Fujiwara, P.K.
Hamilton, R.D. Kenney, A.R. Knowlton, S. Landry, C.A. Mayo,
W.A. McLellan, M.J. Moore, D.P. Nowacek, D.A. Pabst, A.J. Read,
R.M. Rolland. 2005. North Atlantic right whales in crisis.
Science 309:561-562.
Laist, D.W. A.R. Knowlton, J.G. Mead, A.S. Collet and M. Podesta. 2001.
Collisions between ships and whales, Marine Mammal Science,
17(1):35-75
Nelson, M., M. Garron, R. L. Merrick, R. M. Pace III, and T.V.N. Cole.
2007. Mortality and Serious Injury Determinations for Baleen
Whale Stocks along the United States Eastern Seaboard and
Adjacent Canadian Maritimes, 2001-2005. Northeast Fisheries
Science Center Reference Document 07-05.
Pace, R.M. and G. Silber. 2005. Simple analyses of ship and large whale
collisions: Does speed kill? Sixteenth Biennial Conference on
the Biology of Marine Mammals, San Diego, CA.
Vanderlaan, A.S.M. and C.T. Taggart. 2007. Vessel collisions with
whales: The probability of lethal injury based upon vessel
speed. Marine Mammal Science 23(1):144-156.
Vanderlaan, A.S.M., C. T. Taggart, A. R. Serdynska, R. D. Kenney, M. W.
Brown. 2008. Reducing the risk of lethal encounters: vessels
and right whales in the Bay of Fundy and on the Scotian Shelf.
Endangered Species Res. Vol. 4: 283-297.
Table 1. Summary of North Atlantic Right Whale Vessel Strikes, 1999-
2008
Compiled using data obtained from the National Marine Fisheries
Service, the Provincetown Center for Coastal Studies, the New England
Aquarium, and Woods Hole Oceanographic Institution.
For more information on individually identified whales, go to
http://rwcatalog.neaq.org/.
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[GRAPHIC] [TIFF OMITTED] T2492.050
______
The Chairman. Thank you.
Dr. Franklin?
STATEMENT OF JERRY F. FRANKLIN, PH.D., COLLEGE OF FOREST
RESOURCES, UNIVERSITY OF WASHINGTON
Mr. Franklin. Thank you. I appreciate the invitation to be
here today. I would just put down for the record that I have
been involved in the issues with regard to the northern spotted
owl for well over 20 years now, so I have had a little bit of
experience with it.
I was part of the Thomas Committee that did the original
development of the DCA strategy. I was a member of the Gang of
Four. I was a major participant in the FEMAT and Northwest
Forest Plan preparation process, and I was a part of two
sustainable ecosystem institute groups that were convened by
the Fish and Wildlife Service, one to do a comprehensive
science review on the owl and the most recent one to advise
them on how to respond to the criticisms of the draft recovery
plan.
I want to compliment the Fish and Wildlife Service on the
incredible improvement in the plan, going from the draft
recovery plan to the final recovery plan that they issued last
week. It was an order of magnitude improvement in the plan, but
they had a long way to go.
I particularly want to compliment them on the adoption of a
credible strategy for dealing with owls in the dry forest
habitats found on the eastern slope of the Cascade Range. That
dry forest may turn out to be one of the keys to the long-term
survival of this subspecies of the spotted owl because it
appears that there is a possibility that the barred owl is
going to be less competitive on these dry sites, so it was
critical to address that.
I also want to compliment them on the adoption of some
adaptive approaches to keep problem areas. Certainly
implementing the dry forest strategy, really developing a
scientific basis for addressing the barred owl and for
addressing issues in the very complex Klamath-Siskiyou region.
I want to apologize to the Fish and Wildlife Service with
regard to my testimony. I suggested in my testimony that
various advisory committees that they intended to put together
were just going to be Federal. The stated intent with regard to
most of these in the recovery plan is that they would be multi-
institutional and involve a range of stakeholders, and I just
would encourage this Committee to be sure that it happens that
way.
Perhaps my major criticism of the final recovery plan is
that it does not adequately protect suitable owl habitat within
the range of the northern spotted owl. This is recognized in
the final recovery plan itself, which is why they have a
Recovery Action 32 that says: Maintain substantially all of the
older and more structurally complex multi-layered conifer
forests on Federal lands outside of the MOCAs.
Basically what has happened even in the final recovery plan
is that we have a species in very serious decline, and still we
are proposing in this final recovery plan to actually reduce
both the quantity and quality of designated habitat on the
Federal lands for the owl.
We sort of went back to, this is perhaps too strong a word,
but an ancient reserve design as a basis for the MOCAs. The
concept in terms of addressing reserves on the Federal lands
really advanced under the FEMAT and Northwest Forest Plan
process to late successional reserves, which analysis has shown
were much superior in terms of both the quantity and the
quality of habitat insofar as owls are concerned.
There are a couple of things that could be done very easily
to resolve this. One would simply be to base any kind of a
designated reserve system on Federal lands as the late
successional reserve system and then add other areas as needed.
If that seems to be unacceptable and the Agency doesn't
want to do that, it would be possible to develop a more
definitive basis for their Recovery Action 32, one which would
actually define for the Federal agencies what that suitable
habitat is and then simply require the agencies to be
accountable for ensuring that it is maintained.
I think I can end with that. Maybe I will just comment one
other thing here. There was a suggestion that well, the late
successional reserves are not really appropriate for this
because they were for more than that. Well, I was there as part
of a small team with Eric Forsman, Mr. Spotted Owl or Dr.
Spotted Owl, drawing the boundaries of the late successional
reserves in FEMAT.
They were drawn very explicitly to meet owl criteria. We
would have had a very different system if, in fact, the owl
biologists had not been very and appropriately influential in
that process. So to suggest that, in fact, they were not
designed primarily to accommodate owls is not an accurate
representation, so I will leave it there.
Thank you.
[The prepared statement of Mr. Franklin follows:]
Statement of Dr. Jerry F. Franklin, Professor of Ecosystem Analysis,
College of Forest Resources, University of Washington
I am here today to provide testimony on development and revision of
the Recovery Plan for the Northern Spotted Owl, which was released by
the U.S. Fish and Wildlife Service (USFWS) on May 16, 2008. I am
Professor of Ecosystem Analysis in the College of Forest Resources at
the University of Washington. These comments reflect my own views and
not those of any institution or organization with which I am
associated.
Development of the recovery plan for the Northern Spotted Owl
(Strix caurina var.occidentalis) (NSO) has a history that extends back
nearly 20 years and which are interwoven with many other planning
efforts, including the Interagency Scientific committee to Address the
Conservation of the Northern Spotted Owl (Thomas et al.1990),
Scientific Committee on Late Successional Forest Ecosystems (1991),
Forest Ecosystem Management Team (1993), and Northwest Forest Plan
(1994), in which I have been personally involved. I was a member of s
Sustainable Ecosystem Institute's (SEI) team that was commissioned by
the USFWS to do a comprehensive 10-year science review of the owl. In
2007 the USFWS finally issued a Draft Recovery Plan, which received
extensive public comment and scientific review, including by a
scientific panel created by The Wildlife Society and in which I
participated. Finally, earlier this year I participated in a science
team commissioned by the USFWS and convened by SEI to advise the agency
regarding responses to scientific criticisms raised of the draft plan
in completing a final recovery plan.
The SEI Team was convened to assist the USFWS in assessing the
merit of the numerous scientific criticisms that were made of the Draft
Recovery Plan and in developing appropriate responses to these
criticisms during revision of the draft plan. The report of this group,
``Scientific Review of the Draft Northern Spotted Owl Recovery Plan and
Reviewer Comments'' is available at the Sustainable Ecosystems
Institute website (http://sei.org). The team membership included
several NSO specialists as well as scientific experts in fire ecology.
SEI Team activities included two open meetings in which testimony was
taken from numerous other scientific experts.
Major findings of the SEI review of the Draft Recovery Plan
included: (1) Major threats remain the loss of suitable habitat to fire
and timber harvest and Barred Owl competition; (2) Much geographic
variability exists in the ecology of NSO, especially suitable habitat
and prey use, and this needs to be reflected in a final recovery plan;
(3) The Draft Recovery Plan underestimates the threat of habitat loss
from fire and from harvest or salvage of large trees; (4) The Draft
Recovery Plan is unclear about how much suitable habitat will be
protected--and this must be clarified in a revised plan; (5) The
relation of NSO to habitat following wildfire in their home ranges is
not clear--all fires do not result in habitat loss but intense stand-
replacement fires are certainly not desirable circumstances for the
owls; (6) Control of Barred Owls may be warranted but credible
experimentation and other research needs to be done before a control
program is designed and adopted; (7) Wildfire threats are seriously
underplayed in the Draft Recovery Plan and are likely to increase with
climate change; (8) The ``...only viable conservation strategy [in the
dry forests of the eastern Cascades) will be to actively managed fire-
prone forests and landscapes to sustain Spotted Owl habitat. However,
this needs to be closely monitored through an adaptive management
process.''; and (9) ``A simple reserve network is unsustainable in
east-side fire-prone habitats. Conservation strategies, to be viable,
must be designed and implemented at the landscape level.'' The SEI team
also concluded that dealing with wildfire threats to NSO habitat in the
Klamath Province (Klamath-Siskiyou Mountains) is critical but could not
reach a consensus on what strategies should be adopted, given the
considerable ecological complexity of the region; hence, the team
concluded that developing an active conservation strategy for NSO in
that province is a high priority in the near future and that it should
include a team of scientific and technical experts diverse in both
expertise and institutional affiliation.
The SEI report on the Draft Recovery Plan emphasizes adaptive and
collaborative approaches to approaching the several problem areas,
including implementation of an Eastside Cascade management approach,
development of a management approach for NSO in the Klamath Province,
research and experimentation on Barred Owls; and, most important,
general oversight on the implementation and effectiveness of a Final
Recovery Plan. The history of the recovery planning effort and related
federal activities, such as the Bureau of Land Management's WOPR, makes
clear that there is very little confidence in the ability of the
federal agencies to objectively implement such programs without
participation and oversight by scientific and technical personnel from
outside the federal establishment. Models from other regional efforts,
which involve independent standing committee's of experts who are well
educated and full engaged in regional conservation efforts, should be
utilized in creating an oversight body for the final recovery plan.
As is apparent from the preceding comments and the public record,
the Draft Recovery Plan for the Northern Spotted Owl had significant
scientific deficiencies. These included massive reductions in the
acreage of critical habitat designated for the species, inappropriate
extrapolation of scientific findings from the southwestern portions of
the NSO range to its entire range, a failure to credibly address the
threat of uncharacteristic wildfire in drier portions of the NSO range,
and adoption of an aggressive program of Barred Owl removal without any
scientific evidence as to whether it would be effective. All of the
scientific reviews have been critical--intensely critical--of many
aspects of the Draft Recovery Plan and of its overall scientific
credibility. In effect, the Draft Recovery Plant failed all scientific
tests.
The final recovery plan for the NSO that was released last week
represents a major improvement in scientific credibility over the draft
recovery plan. The amount of critical habitat, identified as Managed
Owl Conservation Areas (MOCAs) has been modestly increased, although it
still falls well short of designating all suitable NSO habitat on
federal lands. A credible strategy is provided for addressing risks of
NSO habitat loss to uncharacteristic stand replacement wildfires has
been incorporated into the plan (I will elaborate more on this later in
my testimony). There is a plan for comprehensive scientific study and
experimentation on the relationships between the barred and spotted owl
prior to any extensive barred owl removal program.
USFWS is to be applauded for these significant improvements in the
scientific content of the final Northern Spotted Owl Recovery Plan.
However, it is important that Congress recognize that these
improvements are largely a consequence of the oversight provided by
extensive public involvement, including comprehensive and independent
scientific review during the development of the recovery plan.
It is important to continue this kind of public oversight and broad
scientific participation during the implementation of the plan.
Specifically, the plan calls for the development of several inter-
organizational working groups, including a group that will oversee
implementation of the plan and subgroups that will deal with the
research programs on Barred Owls, development of a strategy for the
Klamath Province, and implementation of the eastside landscape
management approach. The USFWS apparently intends to only populate
these working groups with employees of federal agencies; if this is
correct, it is a serious mistake. Oversight and planning activities of
these types should draw their participants from diverse organizations
and stakeholder groups; they should not be limited to participants from
federal agencies. Beyond broadened participation in these processes,
independent third-party assessments are going to be critical in
assuring the viability and credibility of adaptive management
processes.
My personal perspectives on two specific aspects of the Final
Recovery Plan follow:
Conservation Areas. The 133 owl conservation areas identified in
the plan are not adequate. These are based on an old reserve design
that was developed by the Interagency Scientific Committee to Address
the Conservation of the Northern Spotted Owl (the ``Thomas Committee'')
in 1989-1990. This system of reserves (referred to as Habitat
Conservation Areas or HCAs at that time) was designed to provide
adequate habitat for NSOs but distributed so as to minimize impacts on
timber harvest programs. I see no scientific reason why the USFWS would
have based their approach on this old strategy. The Northwest Forest
Plan provided for a much more extensive system of Late Successional
Reserves (LSRs), a system of reserves superior to the HCAs in both the
amount and quality of owl habitat that was conserved. Given the
critical status of the NSO it seems appropriate to me to provide both
the larger amount and better quality of habitat found in the LSRs in
preference to the system of MOCAs adapted from the earlier HCA
strategy. An explanation of why LSRs were not used as the identified
and mapped conservation area system is not provided in the Final
Recovery Plan. The USFWS should use the NW Forest Plan's system of Late
Successional Reserves as the core of the NSO conservation area strategy
and supplement it as necessary with additional designated conservation
areas. Given the declining status of NSO populations, these additions
to the LSRs might well include all mature and old-growth forest outside
of the LSRs on moist forest sites.
Eastside Dry Forest Strategy. Better explanation or elaboration of
the highly meritorious eastern Cascade Range dry forest strategy is
appropriate in both press releases and in the main body of the plan,
although a fuller presentation is available in an appendix. The press
release describes the strategy as ``...one of shifting spotted owl
habitat patches in an entire landscape...''; the emphasis should not be
on the transient or shifting nature of the patches since the real
intent is actually to decrease the risk that the denser forest patches
of NSO nesting, roosting, and foraging habitat will burn and,
conversely, increase the probability that the designated patches will
persist. Further, at various places the plan describes the treatments
of the forests within which these patches are embedded as ``thinning'';
in fact, the silvicultural treatments are much more than simply
thinning but, rather, restoration treatments that include prescribed
fire and efforts to conserve and restore mature and old tree
populations. USFWS should emphasize these landscape-level treatments as
silvicultural treatments to restore more historic or characteristic
(and, certainly, more sustainable) conditions and that the patches of
NSO habitat will not be subject to significant mechanical thinning but,
rather, retained intact and for as far into the future as possible.
This approach of providing for sustainable owl habitat in the
context of a larger, more holistic effort to restore the dry forest
landscapes, stands, and old tree populations on the eastern slope of
the Cascades is important. Optimizing the output of any single resource
inevitably results in adverse affects on other elements of the
ecosystem, whether organisms, processes or disturbance regimes. The
proposed approach in the dry eastside Cascade forest holds the
potential to benefit the full array of resources.
Which leads me to my concluding comment on the NSO recovery
planning process: I conclude my comments with a plea for holistic
integrated approaches to resolution of natural resource management
issues, including those related to endangered species. Historically
there is a pattern of sequential episodes of planning and management of
natural resources that essentially focus on a primary resource value.
The dominant focus was wood production for many decades, shifted to
conservation of biological diversity (as exemplified by Northern
Spotted Owls), and, most recently to fuel treatments related to
wildfire. It is inevitable that when we adopt a dominant focus on any
single resource that there are significant negative impacts on other
important resource values; it seems to be one of those great absolutes
that this inevitably happens when you optimize for one specific
resource outcome. Focusing primarily on timber production is a great
example for we learned incontrovertibly that devoting a landscape
primarily to maximizing wood production will result in negative impacts
to many other important resource values, regardless of efforts at
mitigation. Natural processes rarely produce forests and landscapes
that ``optimize'' for specific organisms or processes, including
disturbances; that is simply not the pattern by which they evolved. I
believe that we need to stop lurching from one singular emphasis to
another and begin to develop management regimes that truly integrate a
variety of objectives (including timber production, provision of NSO
habitat, and greater sustainability in the face elevated disturbance
regimes). These approaches must be: Based on fundamental scientific
knowledge about forest ecosystems and landscapes, including their
integrated terrestrial and aquatic components; Holistic in their
perspective and integrative in practice; and Actively engage
stakeholders in both design and implementation, incorporate adaptive
approaches, and provide for credible public oversight of agency
performance.
______
Mr. DeFazio. OK. Thank you for clarifying that point.
We would now go to the next witness, and I can't see that
far. Dr. Francesca Grifo?
STATEMENT OF FRANCESCA T. GRIFO, PH.D., SENIOR SCIENTIST AND
DIRECTOR, SCIENTIFIC INTEGRITY PROGRAM, UNION OF CONCERNED
SCIENTISTS
Ms. Grifo. Thank you, Mr. Chairman, and thank you to the
Committee for inviting me here today. I am a Senior Scientist
and the Director of the Scientific Integrity Program at the
Union of Concerned Scientists, a nonprofit working for a
healthy environment and a safer world.
One of the great strengths of the Endangered Species Act is
its foundation in robust scientific principles. Objective
scientific information and methods should be used in protecting
species. The habitat needs of endangered species should be
scientifically well-informed, and the standard of best
available science must rely on impartial scientific experts.
Unfortunately, this has not been the case. The
politicalization of endangered species science undermines the
ESA's implementation and enforcement. As the GAO report
confirms, in every stage of the process from the consideration
of species for protection to the creation of recovery plans for
critically endangered species, the Fish and Wildlife Service
has both distorted science and changed the way it uses
scientific information, creating a bias against endangered and
threatened species. Julie MacDonald was truly only the tip of
the iceberg.
More than 80 species decisions from the past several years
are under some type of review because of inappropriate
interference for political or economic reasons. While we must
continue to uncover instances where endangered species science
has been manipulated, edited, overruled or ignored, it is
equally important to determine what policies allow that
interference to take place.
For example, a Fish and Wildlife policy uncovered under the
Freedom of Information Act prohibited Fish and Wildlife
scientists from using Agency data to support the protection of
endangered species during the 90-day finding, which is the
first step in determining whether a species merits protection.
The new policy still contains a table that requests data to
refute the petition's information and clearly states that the
information within the Service's files is not to be used to
augment a weak petition, which had previously not been the
case.
Documents also show that one portion of the policy which
requires a summary to be sent to Interior months before the
petition review has been completed was implemented specifically
so that Fish, Wildlife and Parks could discuss any issues early
in the process. In the current context, we wonder what that
really means.
And while the spotlight exposing political interference in
endangered species falls most harshly on Fish and Wildlife
Service and Interior, NOAA and the Department of Commerce are
not immune to political pressures. As we have heard, a rule
intended to reduce fatal collisions between ships and the
critically endangered right whale has been held at the Office
of Management and Budget for 456 days when by executive order a
90-day turnaround is required.
Documents that we have uncovered show that the Office of
the Vice President and White House Council of Economic Advisors
spearheaded an attempt by the White House to discredit the
science supporting the rulemaking.
The Council of Economic Advisors went so far as to
recollect the raw data, reprogram a nonrandom selection of data
points--some might call that ``cherry picking'' the data--and
use the resulting unscientific analysis to attempt to discredit
the relationship with vessel speed and whale mortality. NOAA
scientists described this analysis as biased and unlike any
formal sensitivity analysis we are familiar with.
Secretary Kempthorne did not list a single domestic species
for two years and five days until a court deadline forced him
to make a decision on the polar bear. Two hundred and eighty
species await protections on the candidate list. Our research
reveals that 52 90-day petitions and 34 12-month reviews were
denied between 2002 and 2007.
The Fish and Wildlife Service and the National Marine
Fisheries Service have failed to establish a transparent means
of implementing the Endangered Species Act. Agency officials
are making decisions behind closed doors and with little
accountability, giving those who abuse science considerable
cover.
The problem of political interference in science will not
be solved solely by the arrival of a new Administration or the
resignation of additional political appointees. There will
always be pressure on elected officials from special interests
to twist information in their favor and, for that reason, I
urge this Committee to support systemic reforms.
Specifically, meaningful publicly available ethics
guidelines must be implemented at all agencies addressing the
protection of imperiled species. We agree with GAO that the
decision-making process must be made more transparent to expose
the misuse of scientific information.
Scientists should be allowed basic freedoms to carry out
their work and keep up with advances in their field. This
should include the right to publish in peer reviewed journals
regardless of whether their research results agree with
Administration policy or not, the right to speak freely based
on clear media and communication policies and the encouragement
to actively participate in all aspects of scientific societies.
The conference committee reconciling the Whistleblower
Protection Enhancement Act must give Federal scientists the
right to expose political interference in their research
without fear of retribution and to close in the short term and
now because delay has consequences.
Secretary Kempthorne should send a clear message to all
political appointees that substituting opinions for science is
not acceptable. We made this suggestion a year ago at this
hearing, and we are still waiting.
In light of the GAO report and the demonstrated
pervasiveness of political interference in recent years, the
Interior Department should engage in a systemic review of all
Bush Administration decisions to ensure that the science behind
those decisions was not altered or distorted, and Secretary
Kempthorne must demonstrate that all 90-day reviews happen on
time and are protective of species as required by law. We would
like to see stakeholder input into the finalization of that
guidance.
Given the number of recent attempts to undermine the
scientific underpinnings of the ESA by Members of Congress and
political appointees, congressional committees of jurisdiction
must act to safeguard the role of science in protecting highly
imperiled species.
Thank you.
[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 a critique of the ethics policies of the Fish and
Wildlife Service (FWS), evidence of a concerted effort by political
appointees to interfere with the legally mandated process of listing
endangered species, examples of interference in legally mandated
endangered species actions, an overview of the problem of political
interference in science, an updated summary of documented abuses of
science in Endangered Species Act (ESA) 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 implement the law has been compromised.
One of the great strengths of the Endangered Species Act is its
foundation in robust scientific principles and its reliance on the best
available science. Objective scientific information and methods should
be used in listing species, the habitat needs of endangered species
should be ``scientifically well-informed'' and the Endangered Species
Act standard of ``best available science'' must rely on ``impartial
scientific experts.''
Unfortunately, time and time again, when scientific knowledge has
appeared 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 Interior (DOI), this has been accomplished by placing
people who are professionally unqualified or who have clear conflicts
of interest in official posts; by censoring and suppressing reports by
the government's own scientists, and by actually omitting or distorting
scientific data.
I. Introduction
Politicization of the science surrounding the Endangered Species
Act undermines its implementation and enforcement. The manipulation and
suppression of this science is pervasive and is not limited to one
aspect of the execution of the Act, but rather it is rampant from the
first steps of the listing process to the creation of recovery plans of
critically endangered species. In addition, the Fish and Wildlife
Service (FWS) and the National Marine Fisheries Service (NMFS) have
failed to establish a transparent means of implementing the Act nor one
subject to a clear code of ethics. Instead, the agencies allow
political appointees within and without the conservation agencies to
interfere with individual species decisions and propagate policies that
reduce the role of science in endangered species decision making.
The Endangered Species Act is a strong and significant
environmental law, but its implementation is wearing thin under the
assault of political pressures. This failure to insulate science based
decision making from political considerations frequently lands FWS and
NMFS in court, on the losing side of litigation. Decision-making occurs
out of the view of the public, and out of reach of open government laws
like the Freedom of Information Act.
While it is imperative that we continue to uncover instances where
endangered species science has been manipulated, edited, overruled, or
ignored in its entirety, it is equally important to determine what
policies exist or existed in the DOI and Department of Commerce to
allow such interference to take place. Listing under the ESA is based
solely on science; critical habitat and recovery plans can include
economic and other concerns, but shouldn't be allowed to completely
outweigh scientific conservation goals. With 80 FWS and NMFS decisions
(Appendix I) under review because of political interference, this
process of investigation of possibly illegal decisions has already
begun. Unfortunately, FWS in its current capacity cannot be relied upon
to initiate these reviews themselves, as they only found 7 decisions to
review. Systemic problems are more difficult to detect from the
outside, and more difficult to root out. However, we are hopeful that
with clear, unambiguous ethics policies, a renewed commitment to
transparent decision making, and a working environment free of
interference and intimidation from high level political appointees, the
career scientists and managers of the conservation agencies will be
able to identify and correct the processes that have lead to the
current abysmal situation.
This testimony includes our analysis of the beginnings and failings
of ethical reform at the DOI and FWS (page 1), problems with listing
species under the ESA both at the anecdotal level and the procedural
level, a discussion of the inherent flaws in the 90-day review policy
(page 4) the problems in the implementation of the Act after listing,
highlighting the recent case of the right whale, (page 9) and a
discussion of the economic consequences of politically influenced
decisions, and policies that may reduce species protections (page 12).
In conclusion we present our recommendations for how this can be
remedied (page 13).
II. Ethics at the Department of the Interior (DOI) and FWS
Many of the problems with the implementation of the ESA stem from
political appointees manipulating or overruling the science behind ESA
decision-making. A strong ethics policy should address this problem,
together with greater accountability, more transparency, and a
retaliation-free environment for reporting political interference.
Recent ethics policies at DOI and FWS attempt to achieving this goal,
with varying degrees of success.
Secretary Kempthorne's Ethics Reform
In June 2007, Department of Interior Secretary Dirk Kempthorne
unveiled a 10-point ethics plan designed to transform the FWS into ``a
model of an ethical workplace.'' 1 A month later, Kempthorne
quietly scaled back the scope and utility of one of the central pillars
of his plan, the Conduct Accountability Board. 2
Jurisdiction of the Board was limited to cases involving ``Executive
Level'' employees--less than 1% of the Interior workforce--and the
Board was only allowed to review matters referred to it by the Deputy
Secretary and Chief of Staff.
---------------------------------------------------------------------------
\1\ Kempthorne, Dirk. Memorandum to All Employees. Subject:
Promoting Ethics, the Public Interest, and Respectful Behavior. June
27, 2007. Hosted online by Public Employees for Environmental
Responsibility (PEER) at http://www.peer.org/docs/doi/
07_03_07_doi_ethics_
directive.pdf
\2\ Kempthorne, Dirk. Amendment No. 1 to Order No. 3268. Subject:
Creation of the Conduct Accountability Board at the Department of the
Interior. July 25, 2007. Hosted online by PEER at http://www.peer.org/
docs/doi/07_17_12_cab_scope.pdf
---------------------------------------------------------------------------
This means that if former Deputy Secretary Steven Griles, now
serving time in federal prison for obstruction of justice related to
his unethical connections to Jack Abramoff, 3 was still at
Interior he could have determined whether his conduct would be eligible
for Board review. Griles was the subject of an Inspector General
investigation probing Griles' arrangement of meetings between former
clients in the oil and gas industry and Interior Officials. Inspector
General Earl E. Devaney expressed outrage before the House Government
Reform Subcommittee on Energy on Sept 13, 2006 that 23 of 25 potential
ethical violations he had uncovered were dismissed, and then-Secretary
of Interior Gale Norton decided not to act on the remaining two
allegations. 4 As for the general ethics of the DOI's
leadership, Mr. Devaney charged, ``Simply stated, short of a crime,
anything goes at the highest levels of the Department of the
Interior.'' 5
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\3\ Department of Justice. Former Interior Deputy Secretary Steven
Griles Sentenced to 10 Months in Prison for Obstructing U.S. Senate
Investigation into Abramoff Corruption Scandal. June 26, 3007.
Available online at http://www.justice.gov/opa/pr/2007/June/
07_crm_455.html
\4\ Andrews, Edmund L. Interior Official Assails Agency for Ethics
Slide. The New York Times. September 14, 2006.
\5\ Ibid.
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It is unclear what functionality, if any, the Conduct
Accountability Board retains. The first chair of the Board, Mark
Linbaugh, then-assistant secretary for water and science, resigned 16
days after his appointment to chair in order work for the Ferguson
Group as a water lobbyist for industry. 6 Kempthorne had
also identified Linbaugh as one of the Department officials charged to
review the ethics issues raised by the Inspector General's report on
Julie MacDonald. The IG determined that MacDonald, former Assistant
Secretary of Fish, Wildlife, and Parks, had been ``heavily involved
with editing, commenting on, and reshaping the Endangered Species
Program's scientific reports from the field'' and had ``disclosed
nonpublic information to private sector sources.'' 7
Interior Deputy Secretary Lynn Scarlett refused to condemn MacDonald's
actions in testimony on May 9, 2007 before this committee; she instead
said that MacDonald ``strived to do what she thought was her duty to
ensure quality product.'' 8
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\6\ Wyden, Ron. Press Release: Wyden Asks Secretary Kempthorne for
Answers on Interior Ethics Concerns. July 19, 2007. Available online at
http://wyden.senate.gov/newsroom/record.cfm?id=279869&
\7\ Department of the Interior Office of the Inspector General.
Investigative Report On Allegations Against Julie MacDonald, Deputy
Assistant Secretary, Fish, Wildlife, and Parks. Available online at
http://wyden.senate.gov/DOI_IG_Report.pdf
\8\ Scarlett, Lynn. Committee on Natural Resources hearing
transcript. Hearing entitled: Endangered Species Act Implementation:
Science or Politics? May 9, 2007.
---------------------------------------------------------------------------
The Department of Interior clearly needs an ethical conduct board
to review the actions of its high level appointees, and it also needs
to send a stronger message that, at every level of its leadership, it
will adhere to strong ethical standards. It also needs to open the
charge of the Board to review allegations from all-comers, not just two
high ranking officials.
FWS Code of Scientific Conduct
Fish and Wildlife Service Director Dale Hall also took steps
towards ethical reform at his agency. In late January 2008, Hall
released a Scientific Code of Professional Conduct that covers FWS
employees. 9 While a positive first step, we believe this
code has many shortfalls. The code does not encourage transparency.
There is no way for scientists to express their difference of opinion
on a regulatory decision. The code also does not create protections for
scientists who express concerns about interference in science, or an
outlet for them to do so anonymously without fear of reprisal.
---------------------------------------------------------------------------
\9\ Hall, Dale. Scientific Code of Professional Conduct. Jan 30,
2008. Available online at http://www.fws.gov/science/
---------------------------------------------------------------------------
We are particularly concerned about two sections of the code.
Section 7.7 (F) states that employees, should ``Strive to understand
and accurately interpret, report, and apply scientific information to
support management decisions affecting fish and wildlife and their
habitats.'' 10 There are several documented cases of
political interference where scientists were forced to manipulate their
data to support pre-determined management decisions. For example, FOIA
documents show that Benjamin Tuggle, regional director of the FWS
Southwestern office, and Ren Lohoefener, former assistant director for
the Endangered Species Program in the FWS Washington D.C. Office,
``reached a policy call'' that the southwestern bald eagle did not meet
the requirements under the ESA to be listed as a distinct population
segment, or DPS. 11 In order to support this decision, FWS
scientists were instructed during a meeting that the ``answer has to be
that it's not a DPS'' and ``now we need to find an analysis that
works.'' 12 We are concerned that the implementation of this
clause in the ethics policy could further systemize situations like
that of the bald eagle decision.
---------------------------------------------------------------------------
\10\ Ibid.
\11\ Union of Concerned Scientists. FWS Decrees the Southwestern
Bald Eagle is Safe, in Spite of Science. FOIA documents on the
southwestern bald eagle all obtained by the Center for Biological
Diversity and generously shared with UCS. Available online at http://
www.ucsusa.org/scientific_integrity/interference/fws-decrees-
southwestern-bald-eagle-safe.html
\12\ Ibid.
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Section 7.9(C) states that ``Employees must...Be forthright and
honest about the scientific foundation used for possible policy options
and the uncertainties associated with any resulting prediction of
consequences for fish and wildlife and their habitats.'' 13
Exaggerating scientific uncertainty is a common approach for political
opposition to a science-based rule, so while we wholeheartedly agree
that employees should be fully honest about scientific uncertainty,
they should also be fully protected from the misinterpretation of this
uncertainty.
---------------------------------------------------------------------------
\13\ Hall, Dale. Scientific Code of Professional Conduct. Jan 30,
2008. Available online at http://www.fws.gov/science/
---------------------------------------------------------------------------
While the concerns above are all serious issues that should be
addressed, the principal problem with this code of conduct is that it
doesn't cover the leadership at the Interior Department. In a mid-
January 2008 meeting between Deputy Secretary Lynn Scarlett and several
conservation organizations, Scarlett stated that the Interior
Department could not create an overarching scientific code of ethics
because the agencies varied too widely in their mission and procedures
for decision making. 14 The Department should be able to
agree on a basic set of ethics to guide how science is used to inform
decisions. We encourage the Interior Department as a whole to adopt a
policy like the FWS Scientific Code of Professional Conduct, taking
note of our concerns. If it is truly impossible for Interior to adopt a
uniform ethics code, then it should formally agree to abide by and be
subject to the ethics codes of its individual agencies in its dealings
with them.
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\14\ Meeting between Deputy Secretary Lynn Scarlett and
conservation groups, including UCS. Jan 14, 2008.
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III. Problems with Listing
On May 14, 2008, Department of Interior Secretary Dirk Kempthorne,
acting under a court ordered deadline, listed the polar bear as
threatened under the Endangered Species Act. 15 Until that
day, Kempthorne had gone two years and five days without listing a
single domestic species, the longest drought in listing in the history
of the ESA. 16
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\15\ Kempthorne, Dirk. Secretary Kempthorne Announces Decision to
Protect Polar Bears under Endangered Species Act. May 14, 2008.
Available online at http://www.fws.gov/home/feature/2008/
polarbear012308/pdf/DOI_polar_bears_news_release.pdf
\16\ Center for Biological Diversity. Bush Sets New Record in
Refusing to Protect Endangered Species. May 9, 2008. Available online
at http://www.biologicaldiversity.org/news/press_
releases/2008/esa-listing-05-09-2008.html
---------------------------------------------------------------------------
The implementation of the listing process for the Endangered
Species Act is broken. While we do not have a clear picture for why the
listing process has been so effectively severed, we believe it is a
combination of individual actions against species and a biased policy
on evaluating petitions that discriminates against listing. The
following cases support this idea, but a thorough examination of the
full policies and procedures governing listing is needed to ensure that
imperiled species received the protections guaranteed to them by the
ESA.
An Unfair Policy on 90-Day Petitions
The FWS policy on conducting reviews of citizen petitions for ESA
protection of species is biased towards denying listing, likely raises
the standard that a petition must meet higher than is required by the
Act and federal regulations, and prevents a full picture of the ``best
available scientific and commercial data'' from being used in this
first and critical stage towards listing. Through documents, many
highly redacted, obtained via the Freedom of Information Act, UCS
establishes that the implementation of the 90-day petition review
process is open to political interference from high ranking officials
in the FWS and DOI, and is likely part of the reason that the listing
process ground to a halt for two full years.
An overview of the rules governing listing--Two listing pathways
were established for imperiled species in Endangered Species Act--a
discretionary pathway where FWS can initiate the listing process either
by placing a species on the candidate list or by issuing a proposed
listing rule, and a pathway for action by the public. The listing
record clearly shows that citizen petitions, and the court settlements
enforcing their timetables, are the primary entry point to the
endangered species list. The Service, for whatever reasons or
constraints, rarely initiates its own reviews.
The first stage of the citizen-initiated listing pathway is the 90-
day period, where the FWS determines whether or not to do a full-scale
review of the species for listing. This process is determined by Sect
4(b)(3)(A) of the Endangered Species Act, which states,
``To the maximum extent practicable, within 90 days after
receiving the petition of an interested person under section
533(e) of title 5, United States Code, to add a species to, or
to remove a species from, either of the lists published under
subsection (c), the Secretary shall make a finding as to
whether the petition presents substantial scientific or
commercial information indicating that the petitioned action
may be warranted. If such a petition is found to present such
information, the Secretary shall promptly commence a review of
the status of the species concerned.'' 17
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\17\ The Endangered Species Act. Available online at http://
www.fws.gov/endangered/pdfs/ESAall.pdf
---------------------------------------------------------------------------
The standard for substantial information within the Code of Federal
Regulations (CFR) is ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted.'' 18 Petitioners are not required to prove
that a listing is warranted, only to demonstrate the reliability of the
information they present supporting the action advocated by the
petition.
---------------------------------------------------------------------------
\18\ 50 CFR 424.14(b)
---------------------------------------------------------------------------
The FWS interpretation of listing rules--Through the narrow glimpse
available through FOIA documents, the FWS policy for reviewing 90-day
petitions interprets the Act and its accompanying regulations in such a
way that the petition listing route is effectively closed. FWS internal
memos (Appendix II) show that their policy (which updated policies from
1995, but which we have been informed has been since slightly modified)
interprets the Act to mean that, ``it is the responsibility of the
petitioner to provide substantial scientific or commercial information
to support the petitioned action.'' 19 The Service, in its
implementation of this clause, requires the petition to be both legally
and scientifically comprehensive, a standard which the average citizen
or even the average environmental group cannot easily meet.
---------------------------------------------------------------------------
\19\ Memorandum from the Director. Policy on 90-Day Petition
Findings Under the Endangered Species Act. Sent to the Region heads by
Chris Nolin on November 8, 2006. Obtained via FOIA by UCS. Appendix II.
---------------------------------------------------------------------------
In fact, FWS policy explicitly prevents its scientists from using
information they already have within their own files to support a
citizen's petition. A memo obtained through FOIA entitled ``Policy on
90-Day Petition Findings Under the Endangered Species Act'' emailed to
the regional directors on 11/08/2006 by Chris Nolin (chief of the
division of conservation and classification at the Fish and Wildlife
Service) says, in the section discussing the scope of information to be
considered, that information in FWS files is only to be used to
``...evaluate the reliability of the information contained
within the petition...The information within the Service's
files is not to be used to augment a `weak' petition. If we
have information independent of that provided in the petition
that is sufficient to support a change in the species' listing
status, it is the Service's responsibility to utilize our
internal candidate, listing, and delisting priorities and
processes.'' (Emphasis in original). 20
---------------------------------------------------------------------------
\20\ Ibid.
---------------------------------------------------------------------------
Again, FWS rarely initiates its own review of species, so refusing
to continue a 90-day petition in the face of Service data suggesting
that the species needs review is the least protective option FWS could
take.
FWS formalized the attitude that Service information should only be
used to discredit a listing petition, and not augment it in such a way
that imperiled species would quickly receive protections, by creating a
new procedure for the review process, known as the 90-day petition
outline and table. The new procedure, which FWS has told UCS was only
used during 2005 and 2006, was requested by the office of the Assistant
Secretary of Fish, Wildlife, and Parks as an early-warning system to
allow them to ``discuss any issues early in the process.''
21
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\21\ Email from Michelle Morgan. Subject: New petition outline. May
2, 2005. Obtained via FOIA by UCS. Available from UCS upon request.
---------------------------------------------------------------------------
FWS scientists now had to prepare a 1-2 pages summary and an
attached table detailing specifically each claim made in the petition,
the information in the petition to support each claim, and if there was
information in the Service's files to refute the petition. In fact, one
column of the table explicitly calls for FWS information to refute the
petition; there is no corresponding column for supporting information,
and FWS scientists were explicitly told they could not use any.
22 This outline and table were due at the Washington Office
at least 2 months before the petition analysis was completed, so that
the Washington Office could forward this report up the Assistant
Director's level. 23
---------------------------------------------------------------------------
\22\ Previous two references, and also: Listing meeting notes
(regarding the southwestern bald eagle). May 16, 2005. Obtained via
FOIA by the Center for Biological Diversity. All bald eagle FOIAs
referred to in this testimony obtained by CBD. Available online at
http://www.biologicaldiversity.org/news/press_releases/desert-bald-
eagle-05-17-2007.html
\23\ Memorandum from the Director. Policy on 90-Day Petition
Findings Under the Endangered Species Act. Sent to the Region heads by
Chris Nolin on November 8, 2006. Obtained via FOIA by UCS. Appendix II.
---------------------------------------------------------------------------
Specific flaws in the current interpretation--The FWS 90 day policy
is fundamentally flawed for the following reasons:
1. The policy does not allow the use of the best available
science. Listing decisions are required by the Act to be based on the
best available science. The 90-day petition is the first step towards
listing. Selective use of data in the review of a species is inherently
not using the best available scientific data.
2. Scientific data in Service files is used in a biased manner
which favors denying protections. Only allowing information from
Service files to be used to refute a petition, not support a petition,
is an uneven use of the taxpayer-funded science of the FWS. FWS files
may contain the critical information suggesting that a species requires
immediate protections, but the FWS policy prevents its employees from
using this information in conjunction with the review already underway
to make sure threatened and endangered species get their protections in
a timely fashion. Instead, the policy requires Service employees to use
their information to start a separate internal review, a process which
rarely happens. Also, since the issue at hand is the protection of
species threatened with extinction, bureaucratic delays due to uneven
policies can and surely will result in the unnecessary extinctions.
3. The FWS policy lacks transparency. UCS requested the 90 day
tables and the policies regarding the 90 day process in a FOIA request
on November 28, 2007. Six months later, we still only have a partial
response. In what we have received, FWS has redacted all of the
``Service conclusion'' portions of the table which would allow you to
see the effects of their selective use of scientific data. FWS claims
that their conclusions are predecisional. This response is inconsistent
with FWS's response to a FOIA request by the Center for Biological
Diversity (CBD) regarding the southwestern bald eagle, in which no
parts of the 90-day table were redacted.
4. The policy likely raises the burden of proof higher than is
required by the Act or the CFR. According to the Act and the CFR, the
petitioner has to provide substantial information that the petitioned
action is warranted. They do not have to present an air-tight case that
the species is warranted for the petitioned action--that is the
threshold for the 12-month process. The CFR says they have to present
enough information that a ``reasonable person'' would believe the
action to be warranted. While we cannot tell the precise effects of the
use of selective data because of the redactions in our FOIA, the table
provided to the CBD for the bald eagle shows that 34 of their points
were rated ``substantial'' while 4 points were rated ``information in
dispute''. FWS subsequently denied Bald Eagle petition, but a court has
since ordered a 12 month review of this subpopulation because of
evidence that the scientists were forced to manipulate their findings
to support a predetermined policy position.
5. FWS scientists are not allowed to use their full expertise.
Hamstringing the ability of taxpayer-funded scientists with unfair
restrictions on the use of data does a great disservice to the
scientists, the imperiled species, and the public. From what we can
tell from the redacted 90-day tables provided to us, FWS are not always
adhering to the restrictions in the FWS policy, and we applaud them for
their efforts.
6. The policy opens up the review process to political appointees.
The inclusion of the 90-day table and outline to the review process was
done so explicitly at the request of the Office of Fish, Wildlife and
Parks. Internal emails show that conversations with the Assistant
Secretary's office were the catalyst for the inclusion of the column
for information which refutes, never supports, the petition. The
Assistant Secretary's office has, through its former deputy assistant
secretary Julie MacDonald, a documented history of manipulating,
distorting, and suppressing endangered species science, and overturning
the listing decisions of FWS scientists by executive fiat. It is not a
stretch to assume that the 90-day outline and table were a part of the
inappropriate interference of this office. While FWS says that the
table is no longer being used in the petition process, we do not know
if it has been replaced with something else, or if FWS has taken steps
to insulate its scientists from the unacceptable manipulation of high
level political appointees.
Individual Examples of Political Interference in Listing Decisions
In species after species, scientific data has been minimized,
edited, or overruled to deny ESA protections to imperiled species.
Among the species whose listing decisions have been subject to
political interference are the greater sage grouse, Gunnison sage
grouse, Gunnison's prairie dog, white tailed prairie dog, Mexican
garter snake, southwestern bald eagle, Preble's meadow jumping mouse,
Sacramento splittail, California tiger salamander, roundtail chub,
Tabernaemontana rotensis (a rare island tree), fluvial arctic grayling,
and the Pierson's milkvetch. Most of these are now under investigation
by either FWS, the Department of Interior IG, the Government
Accountability Office, or the courts. We will highlight a few cases
(See Appendix I for more examples):
Gunnison's prairie dog--This species was on track for a positive
90-day finding as of Jan 19, 2006. But a short email saying ``Per Julie
please make the pd [prairie dog] finding negative'' overruled the
scientists at FWS and the best available science on this species. When
FWS announced it would review eight species decisions impacted by Julie
MacDonald, it did not include this species in the list that they would
revisit. Senator Wyden has since request an IG investigation including
this prairie dog. 24
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\24\ Union of Concerned Scientists. Systematic Interference with
Science at Interior Department Exposed: Gunnison's Prairie Dog.
Available online at http://www.ucsusa.org/scientific_integrity/
interference/endangered-species-act-interference.html
---------------------------------------------------------------------------
Greater sage grouse--Julie MacDonald criticized scientific studies
showing widespread threats to this species. MacDonald heavily edited
the biologist's findings and the species received a 12-month not-
warranted finding. This finding has since been struck down in court due
to the direct political interference overriding the use of best
available science. 25
---------------------------------------------------------------------------
\25\ Union of Concerned Scientists. Systematic Interference with
Science at Interior Department Exposed: Greater Sage Grouse. Available
online at http://www.ucsusa.org/scientific_integrity/interference/
endangered-species-act-interference.html#
---------------------------------------------------------------------------
An Unclear Future
Two full years and a handful of days, from May 9 2006 to May 14,
2008, passed in which Secretary Kempthorne failed to list a single
domestic species. 26 This was not due to a lack of species--
280 species await protections on the candidate list, 27 and
our FOIA reveals that 52 90-day petitions and 34 12-month reviews were
denied between 2002 and 2007. 28 With over 80 species
decisions from a similar time period under various public, court,
congressional, IG, or GAO reviews because of inappropriate interference
for political or economic reasons, 29 our faith that those
petition denials were done in a fair and scientifically accurate
process is greatly eroded.
---------------------------------------------------------------------------
\26\ Center for Biological Diversity. Bush Sets New Record in
Refusing to Protect Endangered Species. May 9, 2008. Available online
at http://www.biologicaldiversity.org/news/press_
releases/2008/esa-listing-05-09-2008.html
\27\ Department of the Interior. 72 FR 69034.
\28\ UCS. FOIA into use of the 90-day table. Available upon
request.
\29\ Appendix I
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IV. Problems with Implementation after listing
Listing is not the only area of Endangered Species Act
implementation that is under assault from political interference. The
pieces of the Act intended to ensure species' recovery--critical
habitat and recovery plans--are subject to interference via delay,
manipulation of science, biased cost-benefit analyses, and more. We
highlight here a few blatant cases of politicization.
Right Whale Interference
Political interference in endangered species decisions is not
limited to the FWS and DOI. A new investigation by the Union of
Concerned Scientists reveals unprecedented interference with a proposed
rule intended to minimize losses of the critically endangered Northern
Atlantic right whale. Documents show that five executive branch
offices--The Office of Management and Budget, the Council on
Environmental Quality, the Office of Science and Technology Policy, the
Council of Economic Advisers, and the Office of the Vice President--
have all been involved in blocking the National Marine Fisheries
Service from issuing the rule to protect whales from fatal collisions
with ships.
The right whale is critically endangered--Only about 300 right
whales remain on the East Coast, and their numbers are threatened by
fatal collisions with ships and entanglement in fishing gear.
30 Ship strikes have caused at least 19 right whale deaths
since 1986, with more suspected but unconfirmed. 31
According to NMFS, ``no mortality or serious injury for this [whale]
can be considered insignificant'' and that the death of even a single
whale, particularly a breeding female, ``may contribute to the
extinction of the species.'' 32
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\30\ NOAA Fisheries--Office of Protected Resources. North Atlantic
Right Whales (Eubaleana glacialis) webpage. http://www.nmfs.noaa.gov/
pr/species/mammals/cetaceans/rightwhale_north
atlantic.htm
\31\ NOAA. Proposed Rule to Implement Speed Restrictions to Reduce
the Threat of Ship Collisions with North Atlantic Right Whales. 71 FR
36299, 36300. June 26, 2006.
\32\ Stock Assessment, 12. NOAA. Advanced Notice of Proposed
Rulemaking for Right Whale Ship Strike Reduction. 69 FR 30857. June 1,
2004.
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As part of its efforts to protect the remaining individuals of the
species, NMFS proposed a rule to implement a 10-knot speed limit around
16 Atlantic ports and coastal areas during the seasons of right whale
feeding, migrating, and reproducing. 33 After an extensive,
thorough, and transparent four years of drafting, NMFS sent its final
rule to OMB for review on Feb 20, 2007. 34
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\33\ NOAA. Proposed Rule to Implement Speed Restrictions to Reduce
the Threat of Ship Collisions with North Atlantic Right Whales. 71 FR
36299, 36300. June 26, 2006.
\34\ Office of Information and Regulatory Affairs (OIRA). EO 12866
Regulatory Review--Search results for Department of Commerce. http://
www.reginfo.gov/public/do/eoPackageMain
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OMB delays the rule--Under the executive order authorizing the OMB
to review regulations, OMB must complete its rule within 120 days--90
days plus a 30-day extension. 35 The date of this hearing,
May 21, 2008, will mark 456 days since the rule was sent to OMB.
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\35\ Executive Order No. 12866. 58 FR 51734. Oct 4, 1993.
---------------------------------------------------------------------------
White House repeatedly attacks the science underlying the rule--
Internal documents obtained by UCS from anonymous sources show that
offices within the White House have repeatedly challenged and attempted
to discredit the scientific work of NMFS scientists with the goal of
altering the rule.
1. The Office of the Vice President claims NMFS has ``no data''.
In private communication, UCS has been told that the OVP has repeatedly
challenged NOAA/NMFS conclusion that slowing ships, even ships of
extremely large size, will reduce whale mortality. This is supported by
the documents obtained by UCS. One document dated October 2007 shows
NMFS employees replying to unfounded attacks from the Office of the
Vice President:
``OVP staff wonders what evidence NOAA has of whales surviving
a collision with a 'large ship.' OVP staff contends that we
have no evidence (i.e., hard data) that lowering the speeds of
``large ships will actually make a difference.'' 36
---------------------------------------------------------------------------
\36\ NOAA. Response to the Office of the Vice President--Ship
Strike Rulemaking. Oct 2007. Available online at http://
oversight.house.gov/documents/20080430104427.pdf
NOAA's reply indicated this was not the first time they had to
defend against these allegations:
``Several types of statistical analysis (provided earlier) of
the ship strike records and theoretical physics (provided
earlier and appearing in peer-reviewed literature) indicated
that vessel speed is a critical variable in reducing the
severity of a ship strike.'' ``The size parameter is not
statistically significant in the models which incorporate it,
while speed is significant in all the models that included it''
``Accordingly, these theoretical exercises provide no basis to
overturn our previous conclusion that imposing a speed limit on
large vessels would be beneficial to whales.'' 37
---------------------------------------------------------------------------
\37\ Ibid.
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2. The Council of Economic Advisers conducts a biased analysis.
After a meeting on July 10, 2007 involving NOAA, DOC, OMB, OSTP, OVP,
and CEA to discuss the right whale ship speed rule, CEA announced it
would ``investigate the reliability of analysis in the published
literature on which NOAA is basing its position.'' 38 UCS
has obtained a copy of that analysis, which can be seen in Appendix III
in a side by side comparison to the NOAA analysis. 39 NOAA
helped CEA construct the database of ship strike records; CEA also
solicited information directly from academic researchers. Christopher
Taggart of Delhousie University and Amy Knowlton of the New England
Aquarium were both asked for data and analysis by CEA. 40
---------------------------------------------------------------------------
\38\ NOAA. Response to Council of Economic Advisers' (CEA) Analysis
of Vessel Speed vs. Whale Ship Strikes. July 31, 2007. Available online
at http://oversight.house.gov/documents/20080430104427.pdf
\39\ Appendix III. Side by side comparison of NMFS analysis of
right whale mortality vs ship speed with the CEA analysis of the same
thing.
\40\ Private communication with Dr. Amy Knowlton and Dr.
Christopher Taggart.
---------------------------------------------------------------------------
For its analysis, CEA's staff, which has no expertise in either the
right whale or scientific biometrical modeling, re-coded a non-random
selection of datapoints, and concluded that the relationship between
whale mortality and ship speed is not as strong as is suggested by
career NOAA scientists and independent, peer-reviewed publications. CEA
also questioned the choice of 10 knots as a speed limit. 41
---------------------------------------------------------------------------
\41\ NOAA. Response to Council of Economic Advisers' (CEA) Analysis
of Vessel Speed vs. Whale Ship Strikes. July 31, 2007. Available online
at http://oversight.house.gov/documents/20080430104427.pdf
---------------------------------------------------------------------------
NOAA responded to the CEA analysis in a document obtained from an
anonymous source. In this document, NOAA says:
``NOAA has reviewed CEA's analysis and finds it is a biased
sensitivity analysis. ``Furthermore, this analysis is unlike
any formal sensitivity analysis NMFS biometricians are familiar
with.'' ``The basic facts remain that (1) there is a direct
relationship between speed and death/serious injury, and (2) at
vessel speeds at or below 10 knots the probability of death/
serious injury is greatly reduced.'' 42
---------------------------------------------------------------------------
\42\ Ibid.
---------------------------------------------------------------------------
3. NOAA and NMFS scientists have been assailed by attempts to
undermine their science. Through private communications, leaked
documents, public records and anonymous mailings, UCS has determined
that NOAA scientists have been constantly challenged by industry, White
House agencies, and other departments within the federal government.
As yet another challenge to the NOAA research, OSTP
contracted a scientist from Woods Hole Oceanographic Institute
to conduct yet another study on ship speed and right whale
mortality. UCS has been unable to find a copy of this report,
and the scientist has signed a confidentiality agreement.
43
---------------------------------------------------------------------------
\43\ Private communication.
---------------------------------------------------------------------------
The World Shipping Council, and industry group, has been
pressuring OMB to dismiss or seriously alter the rule. The shipping
community is not united in this attitude, as the Chamber of Shipping of
America supports the rule with minor exemptions. 44
---------------------------------------------------------------------------
\44\ Office of Management and Budget. Public Comments webpage for
NOAA. http://www.whitehouse.gov/omb/oira/0648/comments.html
---------------------------------------------------------------------------
NOAA fielded at least one other round of questions from
the White House, this time questioning calf birth data, the impact
force required to kill a whale, and the decision of 30 nautical miles
as the radius around points of concern. NOAA responded to these
questions on Nov 20, 2007. 45
---------------------------------------------------------------------------
\45\ NOAA. Responses to 16 November Questions from the White House
on Right Whale Ship Strike Reduction Final Rule. November 20, 2007.
Available online at http://oversight.house.gov/documents/
20080430104534.pdf
---------------------------------------------------------------------------
The Maritime Administration, a branch of the Department
of Transportation, has repeatedly challenged the rulemaking in
internal, private meetings. 46
---------------------------------------------------------------------------
\46\ Private communication.
---------------------------------------------------------------------------
It is wholly inappropriate for White House agencies to attempt to
manipulate right whale science--The case of the right whale speed rule
displays political interference in science at its worst. NOAA
scientists have done absolutely everything required of them in the
rulemaking, conducting an open and stakeholder-accessible process based
on the best available science. Unfortunately, we have no idea if their
staunch defense of their rule has been successful, both because the
rule is delayed and because the current executive branch review of the
rule is completely opaque.
Uncovering this story took time and patience, as the good
scientists at NOAA wrestled both wanting the political interference to
be exposed and fearing for retaliation against themselves and the rule
itself. However, through anonymous documentation, it is now clear that
White House agencies have conducted two separate studies attempting to
inject artificial uncertainty into the relationship between ship speed
and whale mortality; one of these studies was biased and did not follow
accepted, peer-reviewed practices for analysis. The Office of the Vice
President has boldly doubted the conclusions of the NOAA scientists,
and the OMB has delayed the rule for a year and three months.
Political Interference in Other Species Protections
Besides the right whale, many other species have suffered from
political interference reducing their chances at recovery. Among them
are the arroyo toad, bull trout, California red-legged frog, Canada
lynx, three invertebrates living in Comal Springs, the gulf sturgeon,
loach minnow, Northern spotted owl, Preble's meadow jumping mouse,
Santa Ana sucker, southwestern willow flycatcher, spikedace, and the
Topeka shiner. 47 Many of these are under investigation
(Appendix I). We will highlight two of these cases--the spotted owl
shows high level interference in a recovery plan, and the bull trout
shows a common practice of manipulating a cost-benefit analysis to
significantly reduce critical habitat.
---------------------------------------------------------------------------
\47\ Appendix I.
---------------------------------------------------------------------------
Spotted Owl--High ranking officials from the DOI, FWS, and the
other federal land agencies intervened in the recovery plan for the
northern spotted owl, compromising the science-based protections in
order to reduce barriers to increased logging in old-growth forests.
48 According to peer review by scientists, the draft
Northern Spotted Owl Recovery Plan 49 prepared in 2007 by
FWS is a hodgepodge of deliberately misrepresented or selectively
applied science that downplays the importance of habitat loss.
50 It also includes a second management option, forced upon
the recovery team by senior officials, that eliminates fixed protected
areas for the bird.
---------------------------------------------------------------------------
\48\ DellaSala, Dominick. Written testimony for the House Natural
Resources Committee Hearing entitled ``Endangered Species Act
Implementation: Science or Politics?'' May 9, 2007. http://
www.nccsp.org/files/land/spottedowltestimonydds.pdf
\49\ FWS. Draft Recovery Plan for the Northern Spotted Owl: Merged
Options 1 and 2. April 2007. Available online at http://www.fws.gov/
pacific/ecoservices/endangered/recovery/documents/
DraftRecoveryPlanNorthernSpottedOwlWEB_000.pdf
\50\ FWS. N. Spotted Owl Draft Recovery Plan peer reviews. See in
particular the Society for Conservation Biology (North American
Section) and American Ornithologist's Union review. http://www.fws.gov/
pacific/ecoservices/endangered/recovery/peer.html
---------------------------------------------------------------------------
Bull trout--Officials at the FWS censored an analysis of the
economics of protecting the bull trout, a threatened trout species in
the Pacific Northwest, publishing only the costs associated with
protecting the species and deleting the report's section analyzing the
economic benefits. Furthermore, while the benefits of protecting the
bull trout were deleted from the economic analysis, the costs
associated with this species' protection were inflated. 51
An exaggerated cost analysis and a deleted benefits analysis
essentially give the FWS the economic justification, under the ESA, to
disregard scientific information when designating critical habitat for
the endangered bull trout.
---------------------------------------------------------------------------
\51\ FWS press release, ``Draft Economic Analysis of Critical
Habitat Proposal for Bull Trout in the Columbia and Klamath River
Basins Released for Public Comment,'' April 5, 2004. Available online
at http://news.fws.gov/newsreleases/r6/E6CD3A83-F8FD-484C-
8523CF328EC43D93.html.
---------------------------------------------------------------------------
Economic Consequences
Political interference in science not only delays or prevents much
needed protections for imperiled species; it can also have drastic
economic consequences. For example, in two scientifically compromised
decisions, FWS and NMFS determined that water use plans in California
would not harm several species of endangered fish, including the delta
smelt, winter and spring run Chinook salmon, and Central Valley
Steelhead. Federal courts later confirmed the allegations that politics
overruled science and struck these decisions down, demanding they be
rewritten. However, implementation of water use plans had already begun
to move forward based on these illegal decisions. 52
---------------------------------------------------------------------------
\52\ Endangered Species Coalition. Political Interference and the
Loss of Salmon: How Federal Biological Opinions Affected the Salmon
Fishing Closure. Available upon request.
---------------------------------------------------------------------------
The costs, both economic and ecological, of these decisions are
innumerable and far-reaching. California is experiencing severe drops
in populations in many fish species and the salmon fishery in the
Sacramento system has crashed, along with several other species in the
Delta. The federal government has been asked for $150 million in
disaster relief for the fishing industry, and the recreational fishing
industry (a $4.8 billion industry supporting 41,000 jobs) and
recreational boating ($60 million in sales in 2006) will be hit hard.
53 Additional costs, yet undetermined, will be incurred by
agriculture and the urban water industries as water deliveries to urban
and farming areas are cut dramatically in an attempt to bring these
species back from the brink. Had the FWS and NMFS used the best
available science and determined that the proposed water delivery
options would jeopardize these species in the first place, the region
might not be in the critical situation it finds itself in now.
---------------------------------------------------------------------------
\53\ Pool, Richard. Testimony before the Subcommittee on Fisheries,
Wildlife and Oceans. May 15, 2008. Available online at http://
resourcescommittee.house.gov/images/Documents/20080515/
testimony_pool.pdf
---------------------------------------------------------------------------
New Policies of Concern
On March 16, 2007, the Interior Office of the Solicitor issued a
memorandum reexamining what the ESA means when it defines an
``endangered species'' as one which is ``in danger of extinction
throughout all or a significant portion of its range.'' 54
The conclusion of this memo finds that the range of a species is
limited to that area where it currently exists, and should not include
any range in which the species historically existed but has since been
extirpated. This conclusion will likely impact both listing and the
protection of listed species. Many endangered species live in habitats
of severely reduced size due to urban encroachment or pollution. If FWS
rules that species have no right to their historic range, many will be
left in situations where they simply cannot recover to the point where
than can be removed from the endangered species list.
---------------------------------------------------------------------------
\54\ Department of the Interior Office of the Solicitor. Subject:
The Meaning of ``In Danger of Extinction Throughout All or a
Significant Portion of its Range.'' March 16, 2007. Available online at
http://www.doi.gov/solicitor/M37013.pdf
---------------------------------------------------------------------------
In addition, simultaneous to the listing of the polar bear,
Secretary Kempthorne announced that DOI would be issuing another
solicitor's opinion narrowing the scope of possible protective actions
for the polar bear. 55 The press release also stated that
``the Department will proposed common sense modifications to the
existing regulatory language.'' Modifications to the regulatory
language of the ESA have been attempted before which would have
significantly reduced the effectiveness of the Act. Congress must
remain vigilant as to what these new regulatory changes will be to
ensure that the Act continues to function as the premier defense
against extinction.
---------------------------------------------------------------------------
\55\ Kempthorne, Dirk. Secretary Kempthorne Announces Decision to
Protect Polar Bears under Endangered Species Act. May 14, 2008.
Available online at http://www.fws.gov/home/feature/2008/
polarbear012308/pdf/DOI_polar_bears_news_release.pdf
---------------------------------------------------------------------------
V. Recommendations--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:
Ethics at the DOI
Secretary Kempthorne must fully implement the 10-point ethics plan
he unveiled over a year ago. We have not been able to discern the
extent to which it has been implemented or modified but they do not
appear to be extensive. The Conduct Accountability board appears to be
particularly flawed and dysfunctional and in need of reform such as a
broader charge. The DOI should also create a Scientific Code of
Professional Conduct similar to the FWS and do this with scientific
community input.
Ensuring Agency Independence
While the Office of Management and Budget and other White House
offices play important roles in coordinating and overseeing the
regulatory process, those roles should not include second-guessing or
editing the science underlying ESA decisions.
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 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 (positive or negative)
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.
DOI scientists should be encouraged to actively
participate in relevant scientific association meetings including
serving on their boards or as officers. These activities should not be
viewed as a conflict of interest.
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,
policymakers, 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.
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. Whistleblower protections for scientists who report abuse
of science would help ensure that basic scientific freedoms of federal
scientists are respected.
The Conference Committee reconciling the Whistleblower
Enhancement Act, must retain the House provision which would give
federal scientists the right to expose political interference in their
research without fear of retribution. It's time for the Conference
Committee to act to protect scientists.
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 all
the decisions where political interference has been exposed.
Secretary Kempthorne must demonstrate that the 90 day
review is protective of species. Listing decisions must be based on
best available scientific and commercial data. Secretary Kempthorne
must insure that all the information the FWS has is included--not just
the information that would not support a listing.
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.
We look forward to working with the 110th Congress on comprehensive
bipartisan legislation and other reforms to restore scientific
integrity to federal policymaking.
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______
Mrs. Napolitano [presiding]. Thank you very much. That was
quite a statement.
We would like to now call on Mr. Scott Hoffman Black, the
Executive Director of Xerces Society for Invertebrate
Conservation.
STATEMENT OF SCOTT HOFFMAN BLACK, EXECUTIVE DIRECTOR, XERCES
SOCIETY FOR INVERTEBRATE CONSERVATION
Mr. Black. Thank you for the opportunity to provide
testimony today. I very much appreciate it. My name is Scott
Hoffman Black, and I am an ecologist and entomologist, and I am
the Executive Director of the Xerces Society for Invertebrate
Conservation.
We actually were named after the first butterfly to go
extinct in the U.S. because of human activity. It was in the
San Francisco area as the Presidio expanded for World War II.
Not an easy name to pronounce, but a good name for an
organization like ours.
For 37 years, the Xerces Society has worked with agencies,
scientists, land managers and farmers to conserve habitat,
habitat for invertebrates who are vitally important for our
welfare. So why care about these animals that most people don't
think of? Well, butterflies, bees, dragonflies, beetles, worms,
starfish, mussels and crabs are but a few of the millions of
invertebrates at the heart of a healthy environment.
Consider some facts. More than two-thirds of all flowering
plants require insects for pollination. We wouldn't have most
plants without insects. Insects and other invertebrates play a
vital role in nearly every food chain. Eighty-nine percent of
birds depend upon insects at some point in their lifecycle. If
you fish, bird watch or hunt game birds you can thank insects
for that opportunity as all of these animals need to feed on
insects to survive.
They are also very important in medicine and technology.
For instance, scientists recently discovered the highly
endangered Hawaiian picture wing flies. These are the flies
that MacDonald changed the critical habitat on and provided 18
acres of critical habitat for. These flies may possess an
antibiotic previously unknown to medical science, yet there was
18 acres of critical habitat provided for these very important
animals.
Indeed, according to a recent paper in the journal
Bioscience, the benefits of native insects to the U.S. economy
is worth more than $57 billion a year for pollination services,
pest control and for food for economically important wildlife.
That is $57 billion a year. Hopefully now you know why we care
about these small animals.
While the Endangered Species Act has been successful in
protecting some invertebrates, the U.S. Fish and Wildlife
Service often does not take the recommendations of its own
scientists in making decisions regarding ESA listing and
critical habitat decisions.
Although Julie MacDonald may have provided the most
egregious examples of illegal activity at the expense of these
endangered species, there are cases in which she was not
involved where the U.S. Fish and Wildlife scientists were
overruled anyway.
Consider a couple case studies. I have more in my written
testimony. Over 90 percent of the endangered Salt Creek Tiger
Beetles' salt marsh habitat has been destroyed or severely
degraded, and there are estimated to be less than 700 of these
beetles remaining. Not 7,000. Seven hundred.
A multi-agency team of scientists initially proposed over
36,000 acres of critical habitat for the recovery of this
beetle. At the prompting of the U.S. Fish and Wildlife Service,
the team revised the proposal to 15,000 acres of critical
habitat. They were trying to balance science with other issues.
The team members expressed that 15,000 acres was the bare
minimum amount of habitat needed in order for the species to
recover. The U.S. Fish and Wildlife Service then proposed only
1,795 acres of critical habitat. One scientist on the team, in
comments, has called the decrease from 15,000 to 1,700
ludicrous.
The Miami blue butterfly was mentioned earlier by the GAO.
It was originally petitioned for listing when there were less
than 100 butterflies left. This was a formerly very common
species. The field office and region prepared an emergency rule
to list the species because of its limited habitat and the
multiple threats. After review, Service officials at all
levels--at all levels--supported recommendation for listing.
Citing a Florida state management plan and the existence of
a captive bred population which had not yet been released,
however, one Interior official--not Julie MacDonald--determined
that emergency listing was not warranted, and the blue
butterfly was designated as a candidate instead.
Dr. Jaret Daniels, the world expert on the species and a
butterfly expert at the McGuire Center for Lepidoptera at the
University of Florida, believes that the current species' very
small distribution, dangerously low population numbers and
limited areas available for reintroduction leaves this
butterfly extremely vulnerable to extinction.
As mentioned earlier by Dr. Grifo, in addition to
interfering with these scientific decisions concerning
endangered species, this Administration has been awful and has
really failed the Endangered Species Act on new listings. As we
heard, we have had the fewest new species of any Administration
since the ESA was passed, and it is not for lack of species in
need. We have over 281 species that are candidates waiting for
decisions.
It is imperative that the U.S. Fish and Wildlife Service
and the Interior fix the ESA listing process by allowing their
own scientists to do their jobs unhindered by political
interference and get some of these candidates who have been
some of them waiting for years off this list.
In summary, we continue to see recommendations of U.S. Fish
and Wildlife Service scientists overruled by their superiors.
This interference I believe has a negative impact on the
recovery of these species, as well as a demoralizing effect on
U.S. Fish and Wildlife Service scientists who call me from
their home at night.
In the long run, these decisions cost taxpayers more money
as the issues need to be resolved in court. For the sake of the
conservation of these species, decisions need to be based on
science, not politics.
Thank you, and sorry for going a little bit over.
[The prepared statement of Mr. Black follows:]
Statement of Scott Hoffman Black, Ecologist/Entomologist,
Executive Director, The Xerces Society for Invertebrate Conservation
Summary
Insects and other invertebrates perform the vital services of
pollination, seed dispersal, and nutrient recycling and are food for
wildlife. Native insects are also worth over 57 billion dollars a year
to the U.S. economy. Many invertebrates are currently faced with
extinction. While the Endangered Species Act [ESA] has been very
successful in protecting and recovering some invertebrates, the U.S.
Fish and Wildlife Service [USFWS] often does not follow the law or take
the recommendations of its own scientists in making decisions regarding
ESA listing and critical habitat. Although Julie MacDonald may have
provided the most egregious examples of illegal activity at the expense
of endangered species, there continue to be other, ongoing examples of
the U.S. Fish and Wildlife Service violating the law and ignoring
science.
Salt Creek Tiger Beetle (Cicindela nevadica lincolniana) Critical
Habitat
A multi-agency team of scientists initially proposed over 36,000
acres of critical habitat for the recovery of the Salt Creek Tiger
Beetle. At the prompting of the USFWS, this team revised the proposal
to 15,000 acres of critical habitat. The USFWS then proposed only 1,795
acres of critical habitat. One scientist on the team has called the
decrease from 15,000 acres to 1,795 acres ludicrous. This decision was
not based upon the scientific information available regarding the
species and the area needed for its recovery.
Miami Blue Butterfly (Hemiargus thomasi bethunebakeri) Listing
This butterfly was originally petitioned for listing when there
were less than 100 individuals known to exist. The field office and
region prepared an emergency rule to list the species because it was
limited to one population and threats were imminent. The DC office
failed to follow through on the listing even though all of the
information available showed that listing was both scientifically and
legally justified. The number of butterflies remains critically low yet
the USFWS has not taken action to list this species.
Island Marble Butterfly (Euchloe ausonides insulanus) Listing
The USFWS denied listing this species, which has fewer than 1,000
estimated individuals left in its population. There continue to be
multiple threats to the survival of this butterfly. The field office
initially was preparing a rule to list the species, but the regional
office failed to follow though with the listing.
In addition to interfering with scientific decisions concerning
endangered species, in the tenure of this administration the USFWS has
systematically failed to implement the Endangered Species Act. In
particular, they have been dragging their feet in listing new species,
having listed the fewest new species of any administration since the
ESA was passed. To date, the administration has protected just 60 U.S.
species, compared to 522 protected under the Clinton administration and
231 protected under the elder Bush's administration. Until the courts
forced the U.S. Fish and Wildlife Service to protect the polar bear
last week, the agency had not protected a new U.S. species for 735
days. This drought in protection of new species far surpassed the last
such drought, which occurred when James Watt was Secretary of Interior
and went 382 days without protecting a species in 1981 and 1982. This
previous drought led Congress to amend the Endangered Species Act to
include mandatory timelines for listing species.
The lack of new listings is not for a lack of deserving species.
There are currently 281 species that are candidates for listing,
including many invertebrates.
It is imperative that the USFWS and Department of Interior fix the
ESA listing process by allowing agency scientists to do their jobs
unhindered by political interference and by listing all of the
candidate species in the next five years. Congress could help this
process by increasing funding for listing of new species and ESA
implementation overall and by providing clear direction to the agency
that increased funding be used to provide protection to candidate
species.
Importance of Invertebrates
Butterflies, dragonflies, beetles, worms, starfish, mussels, and
crabs are but a few of the millions of invertebrates at the heart of a
healthy environment. Invertebrates build the stunning coral reefs of
our oceans; they are essential to the reproduction of most flowering
plants, including many fruits, vegetables, and nuts; and they are food
for birds, fish, and other animals.
Of the more than one million species of animals in the world, 94
percent are invertebrates. The services they perform--pollination, seed
dispersal, food for wildlife, nutrient recycling--are critical to life
on our planet. Indeed, without them whole ecosystems would collapse.
But when decisions are made about environmental policy and land
management, these vital and diverse creatures are often overlooked.
Consider the Facts
More than two-thirds of flowering plants require insects for
pollination.
Insects, worms, and mites are vital in helping microbes break down
dung and dead plant and animal matter.
Insects and other invertebrates play pivotal roles in nearly every
food chain. Eighty nine percent of birds depend upon insects at some
point in their lifecycle. Small flies are the most important food
source for juvenile salmon. Even the mighty grizzly bear can eat 30,000
cutworm moths a day. Some grizzly bears get 1/3 of their yearly supply
of food from these insects.
Invertebrates are also very important for medicine and technology.
Horseshoe crabs are used extensively in the biomedical and
pharmaceutical industries. Pharmaceutical companies use a blood enzyme
from horseshoe crabs to test the safety of their products. Spider silk
is being used to understand how to make better parachutes and sea stars
are being studied to understand how to make better photoreceptors.
Studies of the interactions among ants in a colony have led to
breakthroughs in managing shipping terminals. What other discoveries
await us?
Invertebrates Contribute to the Economy
According to a recent paper in the journal Bioscience, the benefits
of insects to the U.S. economy is worth more than $57 billion per year.
Insects are a critical food source for the animals that drive a $50-
billion-per-year recreation industry (game bird hunting, fishing and
bird watching). Pollination by non-honeybee insects, primarily native
bees, supports $3 billion annually in agricultural crops. Native
insects that control pests save growers an estimated $4.5 billion per
year.
According to E.O. Wilson, Pulitzer Prize-winning author and
renowned scientist, ``So important are insects and other land-dwelling
arthropods that if all were to disappear, humanity probably could not
last more than a few months.''
Importance of Endangered Insects
A rare and endangered species of insect or other invertebrate is
unlikely to determine the fate of an ecological system, but as a group
these species may have a profound effect. Ecosystem functions, such as
the recycling of nutrients, often are done by specialists like the
American burying beetle (a species listed as Threatened) rather than
generalists.
Endangered species also can act as keystone species in small,
specialized systems, such as caves, oceanic islands, or some
pollinator--plant relationships. For example, some plant species rely
on only one or few species of pollinators. Decreased abundance or loss
of any of these pollinators can lead to the extinction of plants.
Some endangered species might provide useful products, such as new
defenses against diseases and tools for studying various ecosystem or
organismal processes, as well as direct material benefits. For
instance, Scientists recently discovered that highly endangered
Hawaiian picture wing flies (Drosophila spp.) may possess auto-immune
system characteristics previously unknown to medical science.
Endangered invertebrates can act as ``Canaries in a coal mine'' and
can be used as indicator species. Aquatic insects have been used for
decades to assess water quality, endangered butterflies can be used to
determine the condition of meadow and prairie habitats and some rare
snails can be used to assess the health of old growth forests.
Protecting habitat based on these small animals may also protect
habitat for other more charismatic species.
Insect Extinctions and Endangerment
The Xerces blue butterfly, Antioch katydid, Tobias' caddisfly,
Roberts' alloperlan stonefly, Colorado burrowing mayfly, and Rocky
Mountain grasshopper all were driven extinct by humans.
In the United States, the Natural Heritage Program lists 210 insect
species either as presumed extinct or as missing and possibly extinct.
Many scientists believe that these numbers underestimate actual insect
extinction and that many hundreds, or perhaps thousands, of species
have gone extinct unnoticed in North America.
The USFWS lists 57 insects as either endangered or threatened but
many more may be on the brink of extinction. To illustrate, 4.6% of the
endangered animal species listed by the USFWS, are insects, yet insects
make up more than 72% of global animal diversity. Of all vertebrates
that are known to exist in the United States, approximately 18% are
listed as threatened or endangered. If we assume that insects and
vertebrates face similar destructive forces at similar levels of
intensity, then one should expect to find on the order of 16,000 at-
risk insect species in the United States alone. Although this
assumption oversimplifies the situation, it shows that the 57 insects
listed as endangered and threatened by USFWS are a significant
underestimate. The Natural Heritage Program may be closer to the mark
for select groups of insects for which we have more information. It
estimates that 20% of stoneflies, 10% of tiger beetles 7% of
butterflies, and 8% of dragonflies and damselflies are critically
imperiled or imperiled in the United States. In addition, the Xerces
Society has produced a Red List of Pollinator Insects of North America.
The Red List is the most complete assessment of the status of the
continent's at-risk pollinators. Fifty butterflies and moths and 51
bees are listed as critically imperiled, imperiled or vulnerable.
Invertebrates and the Endangered Species Act
The first invertebrate listed under the Endangered Species Act was
the Schaus swallowtail butterfly on April 28, 1976. This was followed
by six California butterflies on June 1, 1976.
The Endangered Species Act has always treated vertebrates more
generously than it does invertebrates. The Act authorizes the
protection of species, subspecies, and ``distinct population segments''
of vertebrates, yet only species and subspecies of invertebrates may be
protected. This provision was a compromise between the House of
Representatives and the Senate in 1978 after the House voted to
eliminate protection for invertebrates altogether. Insects are also
singled out as the only group that cannot be protected if a particular
species is determined by the Secretary of Agriculture to be an
agricultural pest. However, this provision has never been used, as any
serious pest would not likely be an endangered species.
Even with these restrictions, the Endangered Species Act remains
one of the most important environmental laws in the world for the
conservation of insects and other invertebrates, and the habitat upon
which they depend. There is no other national law in the U.S. that
specifically protects invertebrates and their habitats.
The Xerces Society's Efforts to Protect At-Risk Invertebrates
The Xerces Society works through all available methods to protect
invertebrates and their habitats. We consult with private landowners,
providing them with the information and tools to protect habitat on
private lands. We join efforts with federal, state and county agencies
to restore, enhance and protect habitat on public lands. The Xerces
Society works on cooperative efforts with multiple stakeholders to
protect the most vulnerable animals in the country. The Xerces Society
has a very positive, cooperative relationship with the USFWS, other
federal, state and county land management agencies as well as farmers
and other landowners.
When a species is at risk of extinction, the formal listing of that
species under the Endangered Species Act and the designation of
critical habitat are tools that spur conservation and research on these
animals and engage agencies and private landowners. In my experience,
the United States Endangered Species Act is one of the most powerful
tools for the conservation of these animals and their habitats in the
world.
Using Science (Not Politics) to Protect Species
Over the past seven years there have been many instances of
decisions at the USFWS that were based on politics rather than the
available science. Many of these have involved insects and other
invertebrates. One of the most egregious examples of this was in the
designation of critical habitat for the Hawaiian picture-wing flies.
After pressure from conservation groups, the USFWS designated 11
species of Hawaiian picture-wing flies (Drosophila aglaia, D.
differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. musaphilia,
D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D.
tarphytrichia) as endangered, and one species (D. mulli) as threatened.
But in 2006, it proposed a total of 18 acres as critical habitat for
the flies. This is less than 1 1/2 acres per fly, which was not
adequate for survival of the species nor was it scientifically or
legally defensible.
There have also been many other cases of abuse. To see a more
complete list of invertebrates where science has taken a back seat to
politics in ESA decisions, please see appendix 1.
Politics Still Often Trumps Science in Listing and Critical Habitat
Decisions
In our efforts to protect these animals we continue to see
recommendations of USFWS scientists overruled by their superiors. This
interference has a negative impact on the recovery of the species
involved as well as a demoralizing effect on USFWS scientists who are
trying to do their job. In the long run, these decisions cost tax
payers more money as the issues will need to be resolved in court.
Salt Creek Tiger Beetle (Cicindela nevadica lincolniana) Critical
Habitat
A multi-agency team of scientists initially proposed over 36,000
acres of critical habitat for the recovery of the Salt Creek Tiger
Beetle. At the prompting of the USFWS, this team revised the proposal
to 15,000 acres of critical habitat. The USFWS then proposed only 1,795
acres of critical habitat. One scientist on the team has called the
decrease from 15,000 acres to 1,795 acres ludicrous. This decision was
not based upon the scientific information available regarding the
species and the area needed for its recovery.
On October 6, 2005, the USFWS listed the Salt Creek tiger beetle as
endangered under the U.S. Endangered Species Act. The beetle is only
found in a few remnant saline marshes near Lincoln, Nebraska. The Salt
Creek tiger beetle is one of the rarest insects in the world and
occupies one of the most restricted ranges of any insect in the United
States.
Since the late 1800s, over 90 percent of the Salt Creek tiger
beetle's saline marsh habitat has been destroyed or severely degraded
through commercial, residential, industrial, and agricultural
development and road projects. Although formally much more common only
three small populations of this beetle remain, and the known adult
population size in over the last three years has fluctuated from a low
of only 153 individuals to a high of just over 600 individuals.
The Salt Creek tiger beetle is considered an ``indicator'' species.
Its presence signals the existence of a healthy saline marsh--the
groundwater feeding these wetlands pass through rock formations
containing salts deposited by an ancient sea that once covered
Nebraska. Over the past century, more than 230 species of birds have
been reported using eastern Nebraska saline marshes, including the
least tern, piping plover, and peregrine falcon. These saline wetlands
are also home to several salt-adapted plants that are found nowhere
else in Nebraska. In addition, a healthy saline marsh provides numerous
benefits for people, including water purification and flood control, as
well as an area for bird watching and other outdoor recreation.
On May 4, 2005 a team of scientists from the University of
Nebraska-Lincoln, Nebraska Game and Parks Commission, Lower South
Platte Natural Resource District and the Nebraska Field Office of the
U.S. Fish and Wildlife Service produced an ``Advance Concept Paper''
proposing 36, 906 acres of critical habitat for the Salt Creek tiger
beetle.
USFWS staff at the regional office subsequently asked the authors
of the Advance Concept Paper to revise their paper and reduce the
acreage of the critical habitat proposal. The authors revised their
recommendation to 15,000 acres of critical habitat, distributed across
six recovery areas. Team members expressed that 15,000 acres was the
bare minimum amount of habitat needed in order for the species to
recover.
The USFWS then proposed a total of only 1,795 acres of critical
habitat in four areas (Proposed Rule Federal Register / Vol. 72, No.
238 / Wednesday, December 12, 2007). There was no scientific rationale
for the USFWS to cut over 13,000 acres from the previous proposal. The
USFWS has not provided any scientific justification for how 1,795 acres
would allow the recovery and long term maintenance of the Salt Creek
tiger beetle. One of the scientists who co-authored the Advanced
Concept Paper has called the decrease from 15,000 acres to 1,795 acres
``ludicrous''.
The best available scientific evidence as presented in the Advanced
Concept Paper clearly shows that the current proposed critical habitat
is woefully inadequate for the recovery and long term maintenance of
the Salt Creek Tiger Beetle.
Miami Blue Butterfly (Hemiargus thomasi bethunebakeri) Listing
This butterfly was originally petitioned for listing when there
were less than 100 individuals known to exist. The field office and
region prepared an emergency rule to list the species because it was
limited to one population and threats were imminent. The DC office
failed to follow through on the listing even though all of the
information available showed that listing was both scientifically and
legally justified. The number of butterflies remains critically low yet
the USFWS has not taken action to list this species.
The Miami Blue is endemic to Florida. The range of this butterfly,
which once occurred along the Florida coast (from about St. Petersburg
to Daytona) as well as several western barrier islands including
Sanibel, Marco Island, and Chokoloskee south through the Florida Keys
to Key West and the Dry Tortugas, has been shrinking for many years.
Ever-expanding urbanization and the associated loss of coastal habitat
have all but eliminated the Miami blue from the south Florida mainland.
In recent years, this alarming trend of decline has continued in the
Florida Keys. Once widespread and locally abundant, the butterfly has
become considerably rarer and was thought to have been extinct with no
verified records for the period from March 1992 to October 1999. The
species was rediscovered on 29 November 1999 as part of a small
breeding colony within the boundaries of Bahia Honda State Park on
Bahia Honda Key.
In June of 2000 the North American Butterfly Association petitioned
the USFWS to list the Miami Blue as a federally endangered species on
an emergency basis. The petitioners cited habitat loss and
fragmentation, mismanagement of existing habitat (e.g. fire
suppression), unethical collecting, and the influence of mosquito
control chemicals as threats to this butterfly's continued survival.
On January 3, 2002, the USFWS announced a positive 90-day finding
for the petition to list the Miami blue, initiated a status review, and
sought data and information from the public. In this finding, the USFWS
indicated that the Miami blue appeared to be in danger of extinction,
but did not believe the threats to be so great that extinction was
imminent. However, the USFWS indicated that they could issue an
emergency rule when an imminent threat posed a significant risk to the
well-being of the species.
In June 2002, the USFWS initiated a contract with the McGuire
Center for Lepidoptera and Biodiversity at the University of Florida to
conduct a one-year status survey of the Miami blue throughout its
historic Florida range and to monitor the known population at Bahia
Honda State Park. Although extensive field surveys were conducted, no
additional wild populations of the Miami blue were discovered. A
detailed assessment of the Bahia Honda State Park population confirmed
a series of small breeding colonies with a total estimate of less than
100 individuals at any time.
As the USFWS dragged their feet the State of Florida took action.
On December 10, 2002 the State of Florida declared the Miami blue to be
an endangered species on an emergency basis. This was one of the very
few times that the State of Florida had taken emergency action for any
reason, and the first time it had done so on behalf of an endangered
species. Although this was a good step state listing does not provide
the comprehensive protection of the ESA. On November 19, 2003, the
State of Florida unanimously approved the species management plan and
the resulting addition of the Miami blue to Florida's endangered
species list. The listing by the State of Florida did provide increased
protection for this species and provided some funding for a captive
breeding program. In February 2003, under consultation of the USFWS,
Florida DEP, and the State of Florida (Florida Fish and Wildlife
Conservation Commission), a captive colony of the Miami blue was
initiated at the University of Florida in Gainesville from wild eggs
collected at Bahia Honda State Park.
The field office and region prepared an emergency rule to list the
species because it was limited to one population and threats were
imminent. The DC office failed to follow through on the listing even
though all of the information available showed that listing was both
scientifically and legally justified. In December 2004 the USFWS
acknowledged that the butterfly merited protection, but declined to add
it to the federal list of endangered species citing lack of funding.
They subsequently put it on the candidate list.
Although the state of Florida became involved, the recovery of the
Miami Blue is anything but certain. Initial areas slated for
reintroduction and recovery were disallowed because of the perceived
need for mosquito control. As a result, initial reintroductions were
delayed and divided into Phase I and Phase II areas-making aggressive
recovery actions more challenging.
In 2006, a small number of additional Miami Blue colonies were
discovered in the Key West National Wildlife Refuge. The University of
Florida is currently working with the State of Florida and the Refuge
biologists to determine the exact colony locations and estimates of the
population sizes.
Dr. Jaret Daniels, a butterfly expert with the McGuire Center for
Lepidoptera and Biodiversity (University of Florida), suggests that
although the captive propagation program has gone well, the current
species' distribution, dangerously low wild population numbers, limited
areas available for reintroduction, and limited funding leaves the
butterfly extremely vulnerable to extinction. He believes that federal
listing would benefit the recovery of this species because of access to
additional funding And better protection from threats such as mosquito
control.
Island Marble Butterfly (Euchloe ausonides insulanus) Listing
The USFWS denied listing this species, which has fewer than 1,000
estimated individuals left in its population. There continue to be
multiple threats to the survival of this butterfly. The field office
initially was preparing a rule to list the species, but the regional
office failed to follow though with the listing.
The Island Marble butterfly was historically found in British
Columbia, on Gabriola Island and on Vancouver Island from Nanaimo in
the north, southward along the eastern edge of the island to Beacon
Hill Park, Victoria. It appears that this butterfly inhabited coastal
grasslands, and may have taken advantage of forage in adjacent prairies
associated with Garry Oak woodlands. It had not been seen since 1908
and was believed to be extinct. In 1998, one small population of the
Island Marble was found on San Juan Island in Washington State.
In 2005, two hundred twenty-five surveys were conducted at 110
potential Island Marble sites by staff from the Washington Department
of Fish and Wildlife, USFWS, Washington Department of Natural
Resources, the Xerces Society, and local volunteers. As a result of
these searches, Island Marble butterflies were found at eleven new
locations, although none of the sites had more than five individuals.
The surveys also helped determine the extent of the original population
at San Juan Island National Historical Park American Camp. The vast
majority of the butterflies--and the only viable populations--are
located at American Camp. Many of the individuals found at the new
locations are likely strays from this main site. The total estimated
population for the butterfly was under 1,000 individuals.
Responding to pressure from conservation groups in February 2006,
the USFWS issued a positive 90-day finding for the Island Marble
Butterfly, determining that protection may be warranted and initiating
a status review of the species.
The field office initially was preparing a rule to list the
species, but the regional office failed to follow though with the
listing. Until September 2006, in conversations with the USFWS
biologists preparing the 12 month finding they routinely stated that
the species met all of the criteria for listing. A few weeks before the
decision on the listing was to be announced, the same biologists
informed me that they were no longer allowed to discuss the Island
Marble butterfly. In November of 2006 the USFWS denied protection to
this butterfly with no legal or scientific justification.
To the credit of the USFWS, they have done some work to conserve
this species since the listing decision was made (the Xerces Society is
part of an Island Marble working group). However their effort falls
short of real protection under the Endangered Species Act. As of 2007,
the population numbers were still low and possibly declining.
Conclusion
The Xerces Society for Invertebrate Conservation has worked for
more than 37 years to conserve habitat for our most vulnerable animals.
We often work with the U.S. Fish and Wildlife Service to protect these
animals. However, the USFWS has been ignoring science in many of its
endangered species decisions. For the sake of the conservation of many
important species, decisions need to be made based on science not
politics.
All statements made in this testimony are mine alone. That said I
would like to thank Dr. Jaret Daniels, McGuire Center for Lepidoptera
and Biodiversity (University of Florida), Steve Spomer (University of
Nebraska, Lincoln), and Noah Greenwald and Bill Snape, (Center for
Biological Diversity) for clarification on issues regarding the species
mentioned above and on the ESA process.
Appendix 1.
The USFWS has violated the critical habitat provisions of the
Endangered Species Act in the following invertebrate species:
Peck's Cave Amphipod (Stygobromus pecki) Critical Habitat
The final critical habitat designation included just 38.5 acres (72
Fed. Reg. 39247, July 17, 2007) which is much less than the total
extent of habitat identified as essential to the conservation of the
species by USFWS scientists.
Comal Springs Riffle Beetle (Heterelmis comalensis) Critical Habitat
The final critical habitat designation included just 30.3 acres (72
Fed. Reg. 39247, July 17, 2007) which is much less than the total
extent of habitat identified as essential to the conservation of the
species by USFWS scientists.
Comal Springs Dryopid Beetle (Stygoparnus comalensis) Critical Habitat
The final critical habitat designation included just 39.5 acres (72
Fed. Reg. 39247, July 17, 2007) which is much less than the total
extent of habitat identified as essential to the conservation of the
species by USFWS scientists.
Pecos Assiminea Snail (Assiminea pecos) Critical Habitat
The critical habitat rule for this species dramatically reduced
acreage protection from 1,523 acres to 396.5 acres. 70 Fed. Reg. 46303
(August 9, 2005).
Koster's Tryonia Snail (Juturnia kosteri) Critical Habitat
The critical habitat rule for this species dramatically eliminated
acreage protection from 1,127 acres to zero acres. 70 Fed. Reg. 46303
(August 9, 2005).
Noel's Amphipod (Gammarus desperatus) Critical Habitat
The critical habitat rule for this species dramatically eliminated
acreage protection from 1,127 acres to zero acres. 70 Fed. Reg. 46303
(August 9, 2005).
Roswell Springsnail (Pyrgulopsis roswellensis) Critical Habitat
The critical habitat rule for this species dramatically eliminated
acreage protection from 1,127 acres to zero acres. 70 Fed. Reg. 46303
(August 9, 2005).
Helotes Mold Beetle (Batrisodes venyivi) Critical Habitat
The final rule in question was finalized for this Bexar County (TX)
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the
proposed critical habitat rule sought to protect 958 acres, the final
rule shrunk this to just 164 acres.
Robber Baron Cave Spider (Cicurina baronia) Critical Habitat
The final rule in question was finalized for this Bexar County (TX)
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the
proposed critical habitat rule sought to protect 395 acres, the final
rule shrunk this to just 57 acres.
Madla Cave Meshweaver (Cicurina madla) Critical Habitat
The final rule in question was finalized for this Bexar County (TX)
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the
proposed critical habitat rule sought to protect 1,811 acres, the final
rule shrunk this to just 201 acres.
Braken Bat Cave Meshweaver (Cicurina venii) Critical Habitat
The final rule in question was finalized for this Bexar County (TX)
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the
proposed critical habitat rule sought to protect 481 acres, the final
rule shrunk this to just 85 acres
Government Canyon Bat Cave Meshweaver (Cicurina vespera) Critical
Habitat
The final rule in question was finalized for this Bexar County (TX)
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the
proposed critical habitat rule sought to protect 116 acres, the final
rule eliminated all critical habitat and protected zero acres.
Government Canyon Bat Cave Spider (Neoleptoneta microps) Critical
Habitat
The final rule in question was finalized for this Bexar County (TX)
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the
proposed critical habitat rule sought to protect 304 acres, the final
rule eliminated all critical habitat and protects zero acres.
Ground Beetle (Rhadine exilis) Critical Habitat
The final rule in question was finalized for this Bexar County (TX)
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the
proposed critical habitat rule sought to protect 7,557 acres, the final
rule shrunk this to just 644 acres.
Ground Beetle (Rhadine Infernalis) Critical Habitat
The final rule in question was finalized for this Bexar County (TX)
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the
proposed critical habitat rule sought to protect 5,083 acres, the final
rule shrunk this to just 686 acres.
Cokendolpher Cave Harvestman (Texella cokendolpheri) Critical Habitat
The final rule in question was finalized for this Bexar County (TX)
karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the
proposed critical habitat rule sought to protect 395 acres, the final
rule shrunk this to just 57 acres.
Riverside Fairy Shrimp (Streptocephalus woottoni) Critical Habitat
The final rule in question was finalized on April 12, 2005 (70 Fed.
Reg. 19153) and protects just 306 acres despite earlier proposed rules
that protected anywhere from 5,795 acres to 12,060 acres. Without
rational explanation, or even acknowledgement, it contradicts the
Riverside fairy shrimp's recovery plan, scientific peer reviewers, and
USFWS scientists. It falsely identifies many essential habitat areas as
not essential.
______
Mrs. Napolitano. Thank you.
The reason I am a little bit antsy is we are going to be
having votes in a few minutes it looks like. In fact, they may
be calling for them now, so we will take possibly one more
speaker and then we will have to recess.
We can finish? OK. We may be able to finish, but only if we
hold to our five minute limit if you wouldn't mind.
Mr. Black. I apologize.
Mrs. Napolitano. No problem.
Mr. David Parsons, Science Fellow from the Rewilding
Institute? Thank you for being here, sir.
STATEMENT OF DAVID R. PARSONS,
SCIENCE FELLOW, REWILDING INSTITUTE
Mr. Parsons. Yes, ma'am. Thank you, Madam Chairman. It is a
high honor to be testifying before this Committee.
I have some supporting documents for my written testimony
that I would like to enter into the record with your
permission.
Mrs. Napolitano. Without objection. So ordered, sir.
Mr. Parsons. Thank you.
I have one quick rebuttal to a comment that was made by the
Ranking Republican Member. I believe that was Congressman
Smith. He stated that the law requires the killing of all
Mexican wolves that attack livestock.
I am the primary author of the Federal regulation that
applies to all of the Mexican wolves that live in the wild
today. That regulation was written to allow us the flexibility
to manage conflict, but not at the expense of conserving the
species, the Mexican wolf. I can assure you there is no
provision in that regulation that requires the killing of
Mexican wolves that attack livestock.
Thirty-two years after being listed as endangered under the
Endangered Species Act, the Mexican gray wolf remains the most
endangered mammal in North America and the most endangered
subspecies of gray wolf in the world. Less than 50 are known to
exist in the wild, and around 300 live in captivity.
Under the Bush Administration, the U.S. Fish and Wildlife
Service has failed to conserve and recover the Mexican wolf as
mandated by the Endangered Species Act because it has abandoned
the application of science and mismanaged the program. Since
March of 1998, a total of 99 wolves have been released through
the end of the year 2006, yet less than 50 survive today.
The approved objective for this initial reintroduction
project was the establishment of a viable, self-sustaining wild
population of at least 100 Mexican wolves by the end of 2006.
That was to happen in the 7,000 square mile Blue Range Wolf
Recovery Area in southwest New Mexico and southeastern Arizona.
The Service has failed to meet this objective by all measures,
and there is no evidence that the population is on a growth
trajectory.
Twenty-six years after adoption of a recovery plan and 10
years following the initial reintroduction, the total wild
population of Mexican wolves is only 52 animals and three
successful breeding pairs at the end of the year 2007. The
population is lower now than it was at the end of 2003.
In my opinion, the recovery of the Mexican wolf cannot
succeed under the current policies and management practices of
the Service and a body called the Adaptive Management Oversight
Committee to which the Service has delegated its decision
authority under a memorandum of understanding for the
reintroduction project.
The complex web of bureaucratic, multi-agency authority
sharing, deference to special interests that oppose recovery,
mismanagement of public lands, the promulgation of operational
procedures that cause excessive management removal of wolves,
inattention to science and the indefinite suspension of the
recovery planning process are precluding the Service from
meeting the Endangered Species Act mandate for recovery of the
Mexican gray wolf.
The poster child of mismanagement is the draconian wolf
control policy formerly implemented as Standard Operating
Procedure 13 by the Adaptive Management Oversight Committee and
approved by the Service. This procedure requires the permanent
removal or killing of any wolf that is known to or likely to
have killed three head of livestock over the span of a year
regardless of the consequences to wolf recovery.
This may be what the Congressman was referring to, but it
is a discretionary authority, not a hardwired provision of the
rule.
The Service releases wolves with one hand and kills wolves
with the other. It is my professional opinion that the Service
and its cooperating agencies are prioritizing wolf control over
wolf recovery to the point of threatening the second
extrication of the critically endangered Mexican wolf in the
wild. Ultimately this may result in the complete extinction of
the Mexican wolf subspecies since the captive breeding program
is intended only as a temporary measure to achieve recovery in
the wild.
I will briefly outline some solutions that can correct
these problems. We need to abolish Standard Operating Procedure
13 and establish benchmarks for population growth to meet the
conservation standard of the Act. The Service should reclaim
its decision authority from the Adaptive Management Oversight
Committee because they are not getting the job done.
We should reinstate recovery planning, which the Service
has put into permanent suspension as far as we can tell. We
need to I think develop and introduce legislation that might
help resolve some of these problems, such as perhaps legislation
that would allow the compensation of ranchers to voluntarily retire
Federal grazing permits in the Wolf Recovery Area.
Thank you very much for this opportunity to comment.
[The prepared statement of Mr. Parsons follows:]
Statement of David R. Parsons, Carnivore Conservation Biologist/
Science Fellow, The Rewilding Institute
OVERVIEW OF THE ISSUE
The Mexican gray wolf (Canis lupus baileyi) was completely
extirpated from the wild by a United States government eradication
program throughout its historical range in the U.S. and Mexico and
rescued from the brink of extinction through the captive breeding of
just 7 survivors.
Thirty-two years after receiving protection under the Endangered
Species Act (ESA), the Mexican gray wolf remains the most endangered
mammal in North America and the most endangered subspecies of gray wolf
in the world.
The U.S. Fish and Wildlife Service (FWS) has failed in its duty
under the ESA to conserve and recover the Mexican wolf because it has
abandoned the application of science and consequently mismanaged the
program.
Twenty-six years after adoption of a recovery plan and 10 years
following initial reintroductions, the total wild population of Mexican
wolves was only 52 animals and 3 successful breeding pairs at the end
of 2007 (Figure 1).
The approved objective for this initial reintroduction project is
the establishment of a viable, self-sustaining wild population of at
least 100 wolves and 18 breeding pairs by the end of 2006 in the 7,000
square mile Blue Range Wolf Recovery Area in SW New Mexico and SE
Arizona (Figure 2). The FWS has failed to meet this objective by all
measures; and there is no evidence that the population is on a growth
trajectory.
Under current policies and management practices it appears unlikely
that recovery of the Mexican wolf will succeed. A complex web of
bureaucratic multi-agency authority sharing, deference to special
interests that oppose recovery, mismanagement of public lands, the
promulgation of operational procedures that cause excessive management
removal of wolves, inattention to science, and the indefinite
suspension of the recovery planning process are precluding the FWS from
meeting the Endangered Species Act (ESA) mandate for recovery of the
endangered Mexican wolf.
It is my professional opinion that the FWS and its cooperating
agencies are prioritizing wolf control over wolf recovery of the
endangered Mexican gray wolf to the point of threatening the second
extirpation of the Mexican wolf in the wild; ultimately, this may
result in the complete extinction of the Mexican wolf since the
captive-breeding program is intended as a temporary measure to achieve
recovery in the wild.
BACKGROUND
The FWS approved the Mexican Wolf Recovery Plan in 1982 which
called for reintroduction of Mexican wolves, using the rescued captive
stock of certified pure Mexican wolves, to at least two areas within
their historic range. Following the preparation of an Environmental
Impact Statement (EIS), the Secretary of the Interior signed a Record
of Decision in early 1997 authorizing the release of one experimental
non-essential population (per Section 10(j) of the ESA) into the Blue
Range Wolf Recovery Area (BRWRA; Figure 2).
Section 10(j) of the ESA allows the Secretary of the Interior to
authorize such releases of experimental populations only ``if the
Secretary determines that such release will further the conservation of
such species.'' The ESA defines ``conservation'' as: the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary--in other words,
recovery and delisting of the species.
The BRWRA comprises all of the Gila National Forest in southwestern
New Mexico and all of the Apache portion of the Apache-Sitgreaves
National Forest in southeastern Arizona--an area of about 7,000 square
miles (Figure 2). Ninety-five percent of the area consists of public
national forest lands.
The release of wolves began in 1998, and 99 wolves were released to
the BRWRA by the end of 2006. None were released in 2007.
A special rule (50 C.F.R. Sec. 17.84(k)), promulgated under
provisions of Section 10(j) of the ESA, specifies circumstances under
which Mexican wolves in the BRWRA population may be harassed, killed,
or removed:
Wolves may be harassed when in proximity to people,
livestock, and pets.
Wolves may be killed in self defense or in defense of the
lives of other humans; when wolves are in the act of attacking
livestock on private or tribal property; and when wolves are killed by
livestock guarding dogs.
The rule authorizes, but does not require, the FWS to
implement management measures for additional taking (including killing)
of wolves for various purposes specified in the rule, primarily to
resolve conflicts between wolf restoration and human activities,
especially livestock grazing. But this additional taking must not
preclude progress toward recovery of Mexican wolves (ESA
Sec. 10(j)(2)(A)).
The final EIS (page 2-16) affirms the FWS's recognition, in 1996,
of its duty to conserve and recover Mexican wolves by stating that it
will use the ``greatest degree of management flexibility'' granted
through discretionary rule provisions to achieve ``the least impact on
private activity consistent with wolf recovery'' (emphasis added).
Project authorizing documents mandate the use of an ``adaptive
management'' process for project decisions. Under adaptive management,
actions and policies are to be treated as scientific experiments where
certain outcomes are hypothesized. Anticipated outcomes are compared
with actual outcomes and adaptations are guided by what has been
learned through research, monitoring, and data assessment.
Since October 31, 2003, management of the BRWRA wolf population has
been carried out by a six-agency decision-making body, the Mexican Wolf
Adaptive Management Oversight Committee (AMOC), established by a
Memorandum of Understanding.
The most notable management measure authorizing the killing and
permanent removal of wolves is Standard Operating Procedure 13 (SOP
13), a discretionary management measure adopted by the AMOC and
approved by the FWS which requires the removal or killing of wolves
involved in three fatal livestock depredation incidents in the span of
one year, even if recovery is precluded by its implementation.
STANDARD OPERATING PROCEDURE 13
In October 2005, the AMOC, with FWS approval, formally adopted SOP
13.
Under provisions of SOP 13, ``Wolves known or likely to have
committed three depredation incidents within a period of 365 days shall
be permanently removed from the wild as expeditiously as possible.''
Permanent removal includes live capture with subsequent placement in
captivity and shooting wolves in the wild. Wolf removals under SOP 13
are punitive and mandatory.
SOP 13 requires permanent removal of each offending wolf regardless
of important biological factors such as population numbers, genetic
value, reproductive status, or the presence of dependent pups.
SOP 13 places no cap on the number of wolves that will be
permanently removed from the BRWRA and establishes no population floor
below which its provisions would be suspended.
Since its implementation, Mexican wolf removals have spiked,
undoing all progress towards their recovery in the wild (Figures 1 and
4).
FWS approved SOP 13 despite warnings from experts in the Three-Year
Review (2001; ``Paquet Report'') that progress towards recovery would
not occur without a reduction in wolf mortalities and management
removals.
MEXICAN WOLF REINTRODUCTION PROJECT--STATUS REVIEW
The objective of the authorized reintroduction project is to
establish a viable, self-sustaining wild population of at least 100
Mexican wolves in the BRWRA by the end of 2006--nine years following
the initial releases in 1998. Such a population was predicted to
include 18 breeding pairs.
The FWS has failed to meet this objective by all measures; and
there is no evidence that the population is on a growth trajectory.
The estimated population at the end of 2007 was 52 wolves and only
3 breeding pairs. The population has actually declined since the end of
2003, and the number of breeding pairs has not increased over this 4-
year period (Figure 1).
Permanent removal and lethal control by agency managers of wolves
that depredate livestock is the most significant cause of the
population decline and lack of progress toward the reintroduction
objective (Figure 3).
Given that all Mexican wolves stem from only 7 founders, management
of population genetics is critically important. Recent peer-reviewed
research has documented genetic deficiencies and reduced reproductive
fitness in the wild population and recommended measures to restore the
genetic integrity and fitness of the wild population--a process
referred to as ``genetic rescue.'' Yet, the FWS has established no
formal objectives or procedures for managing and improving the genetic
composition of the wild population.
The Association of Zoos and Aquariums, which manages the captive
population of Mexican wolves, requested that the FWS implement ``a
moratorium on lethal control and permanent removal (rescind or suspend
SOP13) of Mexican wolves in the Blue Range Wolf Recovery Area until an
expert taskforce on genetic issues can be convened to provide guidance
to these actions.'' (Letter to Dr. Benjamin Tuggle, SW Regional
Director, January 2, 2008; emphasis added).
A formal resolution unanimously passed by the American Society of
Mammalogists at its 2007 annual meeting calls upon the FWS to expedite
a revision of the Mexican Wolf Recovery Plan; suspend all predator
control directed at Mexican gray wolves (currently carried out under
SOP 13) at least until the 100-wolf goal of the current reintroduction
program has been achieved; and protect wolves from the consequences of
scavenging on livestock carcasses, which can habituate wolves to
preying on stock causing preventable conflicts.
New Mexico Governor Bill Richardson has called for the immediate
suspension of and ultimately revising SOP 13, but his request has not
been acceded to. In his July 6, 2007, statement, the Governor said:
``The lethal removal of a female wolf, that leaves pups with a single
parent, is a setback to the Mexican Gray Wolf Recovery Program, and
signals that it is time to reexamine the protocols under which wolves
are removed from the wild'' (emphasis added). Recent peer-reviewed
research has confirmed the Governor's judgment.
The wild population of Mexican wolves is not ``self-sustaining.''
In fact, the population is lower now than at the end of 2003.
The FWS contracted with the International Union for the
Conservation of Nature (IUCN) for the required three-year review of the
BRWRA reintroduction project. A team of scientists led by world-
renowned wolf ecologist Dr. Paul C. Paquet issued their report in June
2001; they concluded that ``Survival and recruitment rates are far too
low to ensure population growth or persistence. Without dramatic
improvement in these vital rates, the population will fall short of
predictions for upcoming years.''
The FWS took no action on the substantive recommendations of the
three-year review or any of the many subsequent requests to rescind SOP
13, and the Paquet Report's prediction became the current reality.
THE BRWRA POPULATION OF MEXICAN WOLVES IS ``ESSENTIAL'' TO THEIR
RECOVERY
Mexican wolf recovery will ultimately require the establishment of
at least three or more viable, self-sustaining ``core'' populations
with habitat connectivity among the core populations.
An analysis of five potential reintroduction areas presented in the
final EIS found the BRWRA to be the most suitable site capable of
meeting the 100+ wolf objective within the probable historic range of
the subspecies. The Paquet Report estimated that the BRWRA could
support 200 to 400 Mexican wolves.
A recent peer-reviewed analysis of areas suitable for wolf recovery
in western U.S. confirms the high importance of the BRWRA to the
recovery of the Mexican wolf in the Southwest.
Given that the BRWRA is arguably the best place to initiate wolf
recovery in the Southwest and that restoration of a viable, self-
sustaining population of Mexican wolves in the BRWRA is arguably a
critically essential component to any future recovery plan for the
Mexican wolf, the FWS can no longer justify an ``experimental non-
essential'' classification for the BRWRA population.
In the final rule, the FWS states: ``This reintroduction will
establish a wild population of at least 100 Mexican wolves and reduce
the potential effects of keeping them in captivity in perpetuity. If
captive Mexican wolves are not reintroduced to the wild within a
reasonable period of time, genetic, physical, or behavioral changes
resulting from prolonged captivity could diminish their prospects for
recovery'' (emphasis added).
Recent peer-reviewed research has confirmed genetic deterioration
of captive populations over time and recommends the return of captive
animals to the wild as rapidly as possible.
Endangered species recovery takes place in the wild, not in
captivity. There is absolutely no legal or biological basis for
asserting that a captive breeding program alone satisfies the mandate
of the ESA. Clearly, the existing BRWRA population or any future wild
population of Mexican gray wolves can no longer be considered
``nonessential'' to the continued existence of the subspecies. If there
ever is a case to be made for the first ever designated ``essential''
experimental population under Section 10(j) of the ESA, this is it.
RECOVERY PLANNING
The ESA (Section 4(f)(1)) mandates that the Secretary ``shall
develop and implement...`recovery plans' for the conservation and
survival of endangered species.'' The Mexican Wolf Recovery Plan was
approved and adopted in 1982. FWS policy requires that recovery plans
be reviewed every five years and updated or revised if they are out of
date or not in compliance with the ESA. The 1982 Mexican Wolf Recovery
Plan has never been updated or revised even though it does not contain
``objective, measurable criteria which, when met, would result in a
determination...that the species be removed from the list'' (ESA
Section 4(f)(2)(B)(ii)) nor a detailed plan for fully recovering
Mexican wolves throughout a significant portion of their historic range
to a population status that warrants delisting from the ESA.
The FWS initiated a recovery plan revision process in October 2003
but suspended that effort in January 2005. The FWS has shown no intent
to reinitiate the recovery planning process for the critically
endangered Mexican wolf.
The FWS has indefinitely suspended recovery planning that would
apply the best available science to future decisions for achieving
recovery of the Mexican wolf.
SELECTED EXAMPLES OF MISMANAGEMENT BY FWS
Genetics:
The unnecessary government killing of the alpha male of the Saddle
Pack (AM574) illustrates the punitive management that imperils this
population and the subspecies as a whole. This wolf killed four head of
cattle by mid April 2004 and plans were made to remove him from the
wild. The FWS was aware that he was the sixth most genetically valuable
Mexican wolf for his genetic attributes among the combined wild and
captive populations. He was the single most genetically valuable wolf
in the wild; and was, in fact, irreplaceable genetically. This
important information was documented in internal FWS communications. If
captured alive, he could have been bred in captivity, and would have
perpetuated his valuable genetic heritage. Over the next three months
this wolf ceased killing cattle, and was observed feeding on an elk; it
may be that, like other wolves that switch prey preferences, he would
never have killed another cow. Nevertheless, on July 11, 2004, he was
shot and killed as per FWS instructions.
Adaptive Management:
On February 12, 2005, Congressman Steve Pearce (NM) convened two
meetings, in Glenwood and Socorro, New Mexico, to hear constituents'
concerns about Mexican wolf recovery efforts in New Mexico. Invited
participants were primarily members or supporters of the livestock
industry in New Mexico. At the Congressman's request, senior staff from
FWS's Southwest Region attended the meetings. Conservation
stakeholders' requests for similar access to FWS officials through
formal public hearings were denied.
On April 22, 2005, the AMOC proposed a moratorium on new releases
of Mexican wolves into the BRWRA, and the new Standard Operating
Procedure 13. The Rewilding Institute concluded that the proposed
release moratorium and new wolf control procedures ``will likely
increase mortality and removal of wolves while reducing population
supplementation.'' Following public review, AMOC issued a final release
moratorium and a final SOP 13 with no substantive changes from the
proposed procedures, despite the fact that project monitoring had
documented a population decline of about 20% at the end of 2004.
The Rewilding Institute found that ``[t]he proposed moratorium on
releases and translocations appears politically motivated, premature,
and unjustified on the basis of findings of the 3-year review and
preliminary findings of the 5-year review''. We fail to find any
compelling justification in support of the necessity or urgency of the
proposed moratorium and we recommend that it be rescinded
immediately.'' (Letter to FWS and Arizona Game and Fish Department
dated May 25, 2005). The Rewilding Institute's comments were formally
endorsed by several prominent (some world renowned) conservation
scientists, including Dr. Paul Paquet. Neither the FWS nor the AMOC
paid any heed to our science-based and expert-endorsed comments.
LITIGATION
Frustrated over the FWS's failure to conserve and recover the
federally endangered Mexican gray wolf, twelve conservation
organizations filed two lawsuits in the United States District Court
for the District of Arizona on April 30, 2008. Complaints are
summarized below.
WildEarth Guardians and the Rewilding Institute vs. United States
Fish and Wildlife Service and United States Forest Service. [2:08-cv-
00820-ECV]
FWS has failed to meet the conservation standard of the
ESA Sec. 10(j). Since the beginning of 2005, permanent wolf removals
under SOP 13 have precluded progress towards recovery.
FWS has acted, and is acting, unreasonably and with clear
error of judgment by adopting and continuing to implement its SOP 13
wolf removal campaign in the face of a crashing wolf population.
FWS has arbitrarily and capriciously overstepped the
bounds of management flexibility and entered into the realm of unlawful
endangered species predator control.
FWS's management strategy of killing and trapping its way
to recovering the Mexican gray wolf, as manifested by its adoption and
implementation of SOP 13, has not--and cannot--further the conservation
of the subspecies.
The Forest Service has failed to meet the conservation
duty of ESA Sec. 7(a)(1).
Permanent wolf removals directly resulting from conflicts
with Forest Service permitted livestock are precluding the attainment
of recovery benchmarks for the only wild population of Mexican gray
wolves.
The Forest Service has unlawfully refused or unreasonably
delayed developing and implementing a program for the conservation of
this endangered subspecies.
Defenders of Wildlife; Center for Biological Diversity; Western
Watersheds Project; New Mexico Audubon Council; New Mexico Wilderness
Alliance; University of New Mexico Wilderness Alliance; The Wildlands
Project; Sierra Club; Southwest Environmental Center; and Grand Canyon
Wildlands Council vs. Benjamin Tuggle, Region 2, USFWS; Dale Hall,
Director, USFWS; Dirk Kempthorne, Secretary U.S. Department of The
Interior; U.S. Fish and Wildlife Service. [4:08-cv-00280-DCB]
Defendants failed to carry out environmental analysis and
public review, as required under NEPA, 42 U.S.C. Sec. 4331 et seq., of
its decision or decisions to establish the Adaptive Management
Oversight Committee under a Memorandum of Understanding.
Defendants' decision or decisions to delegate FWS's
statutory duties and responsibilities to administer the Mexican gray
wolf reintroduction project will and have harmed the environment and
will and has caused adverse impacts to the Mexican gray wolf and the
reintroduction project.
Defendants failed to carry out environmental analysis and
public review, as required under NEPA, 42 U.S.C. Sec. 4331 et seq., of
its decision or decisions to approve and implement SOP 13.
Defendants' decision or decisions to establish SOP 13
will and have harmed the environment and will and have caused adverse
impacts to the Mexican gray wolf and the reintroduction project.
Further, because there is no other Mexican gray wolf population in the
wild, the harm extends not just to the reintroduction project but to
the prospects for the ultimate recovery of the subspecies.
By the AMOC MOU, Defendants unlawfully subdelegated to
the other AMOC lead agencies their statutory duty and responsibility to
``implement...the objectives and strategies'' of the most central
facets of the Mexican gray wolf recovery.
The Defendants' decision or decisions to establish the
Adaptive Management Oversight Committee under a Memorandum of
Understanding and to approve and implement SOP 13 are counter to the
FWS's reintroduction environmental impact statement and record of
decision, final ESA Sec. 10(j) rule, the 1998 Interagency Management
Plan, and Defendant's overriding ESA obligation to recover the species
in the wild.
RECOMMENDATIONS
Direct FWS to abolish SOP 13.0 and develop management protocols for
addressing wolf conflicts in ways that take into account population
genetics, demographics and other factors important for making progress
towards recovery of the critically endangered Mexican gray wolf.
Benchmarks for population growth must be established. We recommend an
annual population increase of at least 15% and an annual increase of at
least 2 breeding pairs.
Direct FWS to abolish the AMOC and establish a new model for
interagency participation, reclaim full decision authority for the
BRWRA reintroduction project, and carry out its duty to conserve
Mexican gray wolves per the ESA.
Direct FWS to prepare a legally sufficient recovery plan, under the
1988 revisions to the ESA, based on modern conservation science within
the next year.
Develop and introduce legislation to compensate livestock operators
within the BRWRA, on a voluntary basis, in exchange for the permanent
retirement of the public grazing allotments they lease.
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______
Mrs. Napolitano. Thank you so much, Mr. Parsons. We
appreciate that.
We have now Mr. Larry Irwin, Principal Scientist, National
Council for Air & Stream Improvement. Thank you for being here,
sir.
STATEMENT OF LARRY L. IRWIN, PH.D., PRINCIPAL SCIENTIST,
NATIONAL COUNCIL FOR AIR & STREAM IMPROVEMENT, INC.
Mr. Irwin. Thank you, Madam Chairman. It is really a
delight for me to be here today. Like Jerry Franklin, I have
been involved with the spotted owl for over 20 years and
involved in providing scientific information to most of the
governmental deliberations on behalf of that species.
As most everyone knows, many species that are listed under
the Endangered Species Act are listed largely because of
habitat loss and associated population declines. Marking
progress toward recovery therefore involves reliable answers to
two primary questions. How many animals are needed, and how
much habitat is needed to support them? Valid answers to those
questions require a predictive link between habitat and
population performance.
In the case of the northern spotted owl and the recovery
plan released last week, maps of late successional and old
growth forests form the backbone of the recovery strategy. That
is important and reasonable, but it may well surprise you that
maps of late successional and old growth forests do not predict
barred owl abundance or their distributions or their population
performance very well.
As a result, there are no confident estimates of how much
habitat is necessary. The same is true for estimating
consequences to the owl populations from habitat changes from
implementing Federal forest management plans, such as the BLM's
whopper. Maps of late successional and old growth forests fail
the basic scientific litmus of reliability. There remains then
an unsettling amount of scientific uncertainty for recovery
planning.
Now, I concur with the primary elements, the nuts and bolts
of the recovery plan, but in my view the picture is incomplete,
and some parts of the picture are underemphasized. I think this
Committee can do something about that.
Two primary topics I want to talk about are risk assessment
and adaptive management. I would like to elaborate just a
little bit. The threat to recovery from uncharacteristically
intense wildfires has been raised in this hearing two or three
times today. I think it remains underestimated.
Since the 1994 Northwest Forest Plan was implemented,
unnaturally intense wildfires destroyed several dozen spotted
owl sites and degraded many more. Certainly climate changes
portend additional severe fires in the future that would
disrupt the recovery network and be a problem for recovery.
Concern for these fires is even elevated because the most
productive spotted owls occur in the forests that are at the
highest degree of risk. Recurring drought, forest insect and
disease epidemics and, as we heard, invading barred owls
exacerbate those risks.
The final recovery plan identified them certainly, but
recommended qualitative or informal analyses of risks within
the fire prone landscapes. I believe the need for management of
these landscapes is higher than that, and doing so requires
formal, quantitative assessments of risk.
Certainly chronic changes in these forests have created
negative consequences for the owls that are not well accounted
for in the final recovery plan. These sites have been
classified as suitable. The owls are abandoning them. They look
to us because they have large trees and dense cover as suitable
habitat. The owls are saying otherwise.
Something is happening internally, so there is a difficult
problem we have to attend and, in fact, it is a paradox in that
the treatments that might improve the habitat for these owls
and reduce the risk of fire could also degrade habitat quality
for the owl. That is a first order paradox that requires formal
attention.
We have learned recently that habitat for the owl is indeed
more than late successional and old growth forests. Details of
forest stand structure, tree species composition, density of
the vegetation on the ground matter.
The final plan described adaptive management as a means of
identifying what those features are and how to apply them in
management. My concern here is that adaptive management was
first identified in 1990 to be applied to spotted owls. It has
yet to be applied, even after three Administrations have gone
by the wayside.
So I ask that this Committee provide the funding for the
appropriate research and the appropriate technical personnel
to, in fact, do formal risk assessments and truly apply
adaptive management.
Thank you very much.
[The prepared statement of Mr. Irwin follows:]
Statement of Larry L. Irwin, Ph.D., Principal Scientist, National
Council for Air and Stream Improvement, Inc., Stevensville, Montana
Chairman Rahall and distinguished committee members. I am truly
honored to speak to you today. I am Larry Irwin, Principal Scientist
and Western Wildlife Program Manager for the National Council for Air
and Stream Improvement, Inc., or NCASI. NCASI is a non-profit, 501(c)6
environmental management and research organization with headquarters in
Research Triangle Park, North Carolina. Since 1986, I have conducted
research and contracted other scientists to conduct research on topics
associated with forestry and various wildlife species, including the
threatened Northern Spotted Owl, or NSO. Approximately half of our
research funding comes from member companies; the remainder comes from
collaborating private, state, or federal natural resource
organizations.
I have conducted scientific studies involving habitat relationships
and population dynamics among Spotted Owls throughout the 3 affected
states, emphasizing the NSO. I have published over 30 scientific papers
on NSOs, some 2 dozen of which appeared in peer-reviewed publications.
Also, I am currently conducting three cooperative studies that involve
measuring details of habitat conditions for Barred Owls and NSOs that
occupy the same areas. Barred Owls recently invaded the Pacific
Northwest and are strongly implicated in ongoing declines of NSO
populations via competitive interactions.
By invitation from Dr. Jack Ward Thomas, now an Emeritus Chief of
the U.S. Forest Service, I served as an observer/advisor to the
Interagency Committee of Scientists who proposed the primary
conservation strategy for the NSO in 1990. I wrote the chapter on
adaptive management for that conservation strategy. The fundamental
premises of that strategy have endured through subsequent iterations,
including the recovery plan that was released late last week.
Like many species, habitat loss and associated population declines
were among the major reasons the NSO was listed under the ESA. Recovery
for the Northern Spotted Owl is predicated on preserving and restoring
late-successional and old-growth forests (LSOG). Yet, a recurring
challenge with recovering the Northern Spotted Owl and many other
species in peril involves reliable answers to questions regarding how
many animals and how much habitat are needed.
No one questions that LSOG forests are highly important to the
ecology of NSOs. Yet, it may surprise you that after at least
$50million of investment in research and monitoring over the past 30
years, maps of LSOG forests do not predict NSO distributions very well.
Perhaps more surprising, there are no strong correlations between NSO
demographic performance and LSOG forests that would allow confident
predictions of NSO population response to the recovery plan or to
federal forest management plans based upon amounts and distributions of
such habitat. Make no mistake, enormous scientific progress has been
made, but an unsettling amount of scientific uncertainty remains.
Therefore, my purposes today are to address two topics described
within the Final Recovery Plan for the Northern Spotted Owl that could
be boosted by this Committee:
1. Risk Assessment as a means of responding to threats to NSO
populations in fire-prone forests; and
2. Adaptive Management as a means of rapidly reducing scientific
uncertainty by improving the ability to predict owl demographic
performance in response to habitat provided through the recovery
strategy.
A major take-home message is that there is a great deal of
ecological variability within and among various forest types occupied
by the NSO. Much of that variability was acknowledged but incompletely
described in the Recovery Plan. Ecological variability means that a
sustainable recovery strategy for NSOs must be multi-faceted and
specifically orchestrated to learn from experience. I illustrate my
points by briefly reporting on examples from research on NSOs.
I. RISK ASSESSMENT FOR SPOTTED OWLS IN FIRE-PRONE FORESTS
I concur with recent views expressed by Courtney et al. (2008) that
the threat to NSO populations from uncharacteristically intense
wildfires was been widely under-estimated in the draft recovery plan,
and I find that remains true in the Final Recovery Plan as well. That
may have occurred because habitat loss via clearcut logging was
considered to be a greater and more immediate concern. Also, a
significant portion of the geographic range of the NSO involves moist
forests less prone to uncharacteristic fires. Or, it may have occurred
because NSOs have been observed persisting through some wildfires.
Moreover, it might have seemed logical that wildfires are natural and
therefore perhaps an important part of sustaining some forest
ecosystems. I share the latter view to a limited extent.
However, dry fire-prone forests comprise perhaps as much as 40% of
the geographic range of the NSO, so their contributions to recovery are
paramount. And we know that intense wildfires destroy habitats. For
example, unnaturally intense fires, such as the Tyee fires in the
eastern Washington Cascades in 1994 and the Biscuit fires in
southwestern Oregon in 2002, destroyed several dozen NSO sites. The
NSOs in the most intensively burned areas either died or emigrated.
With ongoing climate changes, we can expect more such severe fire
events in the future.
The Final Recovery Plan, acknowledging significant threats to NSOs
in dry, fire-prone forests, calls for a ``landscape management''
strategy for the eastern Cascades through the California Cascades part
of the range of the owl, and recommended informal analyses of
associated risks. Below, I use examples to summarize the need for pre-
emptive management and scientific support for formal risk assessments
associated with active management of NSO habitat. After that, I end my
presentation with a section describing options for reducing scientific
and management uncertainty via adaptive management experiments.
A majority of NSO nesting sites in Washington's eastern Cascades
was selectively harvested several decades ago. These sites now support
dense pole-sized thickets under the remaining, often disease-ridden
trees. Such small-diameter thickets in the sub-canopies of Douglas-fir
forests mixed with Ponderosa pine trees are consistent with changes
that occurred after the onset of fire suppression. The combination of
selective harvesting and fire suppression most likely inadvertently
resulted in suitable NSO habitat. However, those owl sites are now at
great risk of extensive habitat loss to uncharacteristic wildfires. The
risk is of high concern because those forests include the areas where
NSO reproductive rates are highest, a point left out of the Final
Recovery Plan. An extended insect epidemic exacerbates the risk of
intense wildfires.
The result is a ``wicked'' ecological problem in that the most
productive NSOs exist in forests at greatest risk to uncharacteristic
wildfires, yet fuel reduction treatments could conceivably reduce
habitat quality for the owls, at least in the short run. That is a
paradox of the first order.
It gets worse. Natural, late-successional dry forests in the
eastern side of the Cascades and parts of the Klamath region contained
frequent gaps in the forest canopies and patches of forest-floor
shrubs. These features apparently resulted from frequent light- to
moderate intensity fires. Now, after decades of fire suppression
combined with recurring drought and epidemics of insects and forest
diseases, the old Douglas-fir trees are gradually being replaced by
grand fir or white fir trees, which are more shade-tolerant. Forest
ecologists have labeled that process ``fragmentation in reverse''. It
might also be labeled retrogressive succession.
These subtle and chronic changes resulted in negative consequences
to NSOs that were not considered in the Final Recovery Plan. In a
recent publication, we documented reduced reproductive performance by
NSOs as well as site abandonment in such forests. Those events occurred
even though the predominant overstory grand fir trees are old and large
and no logging occurred during our study (the sites are in Late
Successional Reserves, or LSRs, under the 1994 Northwest Forest Plan).
Now, the increasing populations of Barred Owls seem likely to
exacerbate the situation.
The negative effects of this subtle and chronic phenomenon of
fragmentation in reverse or retrogressive succession on NSO population
performance in dry grand fir or white fir forests are not widely
understood or accepted. Possibly that has occurred because it runs
counter to the preponderance of scientific research in the moist
Douglas-fir/Western Hemlock zone that demonstrated the strong
association between NSOs and pristine, late-successional and old-growth
forests. The west-side paradigm has been extrapolated to dry-forests
that are not pristine. Many of these eastside forests have features
that characterize old forests, so they are deemed to be high-quality
habitat. However, the owls are telling us otherwise. There, a custodial
strategy for such forests is sub-optimal. The internal quality of those
habitats has eroded over time and many owls (50 pairs in our study)
have abandoned the affected stands.
The consequences of such chronic habitat quality loss to NSOs are
seriously under-estimated. In the section below on relative risk
assessment, I provide additional information that supports my view that
the details of tree species composition and density matter greatly to
NSOs, in addition to trees of large size and old age. To date, however,
conservation planning and recovery for NSOs has made little or no
distinctions among the species of trees that may dominate a forest.
Fortunately, the Final Recovery Plan does acknowledge the possibility
that composition may matter, and if so, it would be determined via
adaptive management activities. I will get to that later.
It is important to note here that, in addition to providing for NSO
recovery, the LSR network was developed to support other species that
are associated with late-successional and old-growth forests. However,
research by other scientists recently demonstrated that such
unnaturally dense conditions and related compositional changes in dry
grand fir forests are associated with reduced songbird species
diversity and abundance, even though large old trees are present.
Both forest conditions that I've described--that is, forests at-
risk to uncharacteristically intense wildfires and those in
retrogressively advanced situations--are not sustainable. The decision
to be made for such forests is not whether or not to manage them; the
decision involves how to manage.
A. BUT WHAT SHOULD THE ACTIVE MANAGEMENT LOOK LIKE?
Aldo Leopold, the father of modern wildlife management, developed
the central thesis of wildlife management, which holds that the same
factors that historically destroyed wildlife and their habitats--
logging, livestock grazing, farming, hunting, and wildfire--can be used
judiciously and creatively to restore them. Many participants in
endangered species recovery have forgotten that axiom. On the other
hand, and in accordance with Leopold's view, many forest-wildlife
scientists do suggest that careful harvesting of trees can emulate some
spatial fire patterns, or can approximate stand structures and
composition similar to those created by fires.
Mind you, judicious logging alone cannot be expected to replicate
all aspects of natural fires, due, among other things, to multiple
successional trajectories that depend upon a variety of ecological
processes associated with soils, moisture, activities of herbivores and
post-disturbance weather patterns. Therefore, it seems reasonable to
anticipate that prescribed burning might well be part of the NSO
recovery toolbox, at least in areas with natural fuel loads. Here, I
emphasize forests where prescribed fires constitute an unacceptable
risk of growing into catastrophic fires until distribution and
abundance of forest fuels, both live and dead, are treated
mechanically.
As noted in the 2008 Final Recovery Plan, there is indirect
evidence to support silvicultural programs that emphasize fuel
reductions in the Eastern Cascades ecological province. For example, we
found that understory hardwood (shrubs) were comparatively abundant
around NSO nest sites in fire-prone Douglas-fir/Ponderosa pine forests.
These hardwood species all increase after forest thinning as well as
burning. In addition, group seed-tree and patch-cut systems have been
demonstrated to maintain the abundance, species richness and diversity
of many small mammals, suggesting that important prey species can be
maintained. In one eastern Washington Cascades study densities of
northern flying squirrels, the NSO's primary prey, increased after
partial harvesting that left large snags and downed woody debris.
B. EMBRACING RISK AND UNCERTAINTY: TECHNOLOGY EXISTS TO SUPPORT FORMAL
COMPARATIVE RISK ASSESSMENTS
Recent assessments of the status of the NSO, such as the draft and
final recovery plan and federal forest planning activities such as the
BLM's Western Oregon Plan Revision (WOPR), included informal
assessments of risks of uncharacteristic wildfire in fire-prone
forests. To my knowledge, no assessments for the NSO have attempted
formal risk analyses that might balance short- and long-term risks and
benefits to NSOs of ecological restoration relative to minimizing
uncharacteristically intense wildfires or reversing successional
retrogression.
Fortunately, a special issue in Forest Ecology and Management in
2005 (vol. 211) illustrated analytical tools and decision-making
procedures that can provide land and resource managers, and Congress,
greater confidence in displaying short and long-term consequences of
proposed actions. The special issue summarized the discipline of
relative risk assessment, described state-or-the-art methods for
predicting hazards and risks of uncharacteristic wildfires, and
provided several case-histories for conservation of important
ecosystems or species in peril that are subject to uncharacteristic
wildfire. Two case-study examples were illustrated for spotted owls.
A lack of necessary and reliable analytical tools is often invoked
by federal regulatory agencies to justify short-term custodial
management (i.e., ``preservation'') over long-term restoration and
dismiss formal risk assessment. NCASI, several federal and state
agencies, and several private companies have been working since 1998 to
develop new decision-support tools that can better quantify the
relative risks of short-term preservation versus actively addressing
long-term risks of uncharacteristic disturbances. In that endeavor, we
asked a different question: ``Do details for forest-stand structure and
tree- and understory species composition matter to NSOs?'' Such a
question must be answered for describing habitat in terms understood by
forest ecologists and managers. That effort, which I supervise,
includes 9 individual study areas in western Oregon and northern
California where over 250 spotted owls have been radio-tagged. That
information has been combined into a model that now can be linked with
established tools used by foresters for formal relative risk
assessments: forest growth models, fire-risk models, and harvest
scheduling with spatial constraints.
During that research we learned that habitat for spotted owls is
more than late-successional and old-growth conifer forests. Hardwoods,
particularly in forest stands near riparian zones in small-order
watersheds are very important to spotted owls. In fact, habitat for the
NSO is even broader than forests: in winter, some NSOs in the Medford,
Oregon area descend to lower-elevations where they forage at night
within south-slope manazanita brushfields. These brushfields contain
only a few scattered trees and are maintained by frequent fires. There,
they acquire woodrats, a major prey item.
We have also learned in early analyses that the likelihood of an
owl using a forest stand varies with increases in basal area of
Douglas-fir trees. As shown in the attachment graphics, the pattern is
hump-backed, which means that Douglas-fir stands can be either too
sparse or too dense. Other important factors include distance from nest
sites, snag density, downed woody debris, understory shrubs, and tree
species composition. For example, in mixed conifer stands, Ponderosa
pine seems to exert a negative influence on NSOs. That suggests that
ecological restoration that removes small-diameter Douglas-fir trees to
promote old-growth Ponderosa pine is likely to work against recovery of
the NSO. Importantly, densities of large trees and overstory canopy
cover, 2 primary factors often used to map suitable NSO habitat, were
not strong predictors.
In my opinion, deeper understanding and stronger technology for
formal comparative risk assessments that include active management will
help promote recovery of the NSO. It will also result in more-informed
natural resource plans regarding treatments that provide satisfactory
protection while also reducing risk of catastrophic wildfire.
Because of high variation among physiographic provinces, these
topics are best addressed at the level of a national forest or BLM
district. Thus, I encourage this committee to consider promoting and
funding the necessary personnel and additional risk-assessment
technology that could accelerate both the recovery efforts and
judicious federal land management planning in forests occupied by NSOs
that also are prone to uncharacteristic wildfires.
II. REDUCING SCIENTIFIC UNCERTAINTY: ADAPTIVE MANAGEMENT CAN PROMOTE A
MORE SUSTAINABLE FOREST AND MORE EFFECTIVE RECOVERY
Prior to widespread application in site-specific or watershed
planning for silvicultural intervention within or near NSO sites,
models such as that described above should properly be considered as
``working hypotheses'' for testing and refinement via well-designed
adaptive management experiments. Such ideas about utilizing adaptive
management were emphasized in the Final Recovery Plan, but only for the
Klamath region in southwestern Oregon and Northern California. However,
I believe the Plan may have been overly optimistic in presuming that
adaptive management will truly serve NSO recovery.
The Interagency Scientific Committee (ISC), the Forest Ecosystem
Management and Assessment Team (FEMAT), and previous recovery plans all
recognized and promoted adaptive management as a means for identifying
silvicultural practices on federal lands that might hasten re-growth of
LSOG forests and thereby sustain species such as NSOs. And 10 federal
Adaptive Management Areas were established via President Clinton's
Northwest Forest Plan in 1994. Unfortunately, recent reviews point out
that adaptive management has become a buzzword and its promises have
not been fully realized.
For example, it is now nearly 15 years since adoption of the
Northwest Forest Plan, and no federal research has been undertaken to
evaluate how NSOs might respond to habitat manipulation in an adaptive
management framework. Wildlife scientists have repeatedly demonstrated
the negative consequences clearcutting within owl habitats, but know
almost nothing about the effects of numerous combinations of other
forest management practices such as thinning, selection, or shelterwood
systems of silviculture.
Further, the 1994 Northwest Forest Plan assumed that the interim
no-touch, ``default buffers'' along stream courses would be altered and
some management allowed once watershed assessments were completed. That
would have afforded additional opportunities for ``adaptive management
tests''. However, these redundant buffers remain in place, and are
predicted to lose their hardwoods over the next 50 years. As stated
above, this could have negative effects on NSO recovery because
hardwoods are important to them via their prey.
The crucial aspects of the Northwest Forest Plan related to
``adaptive management'', that is, the 10 adaptive management areas,
thinning or partial harvesting in stands in LSRs, and adjustments in
widths and silvicultural practices related to riparian buffers, have
not been aggressively utilized to provide practical insights and new
technical information. There is little to suggest that yet another
recommendation for adaptive management, as indicated in the Final
Recovery Plan, will actually be implemented.
I remain firmly convinced that new scientific information is
crucial to developing responsive management to promote recovery of NSOs
over the long run, while taking into account the dynamic nature of
their habitats. The ``static habitat'' approach has dominated and the
risk of loss of those habitats from catastrophic fire or degradation of
habitat quality via successional replacement, has progressively
increased.
Diverging a bit from the Final Recovery Plan, I believe that the
success of innovative forest management strategies for dry, fire-prone
forests requires research and monitoring within an adaptive management
framework in the eastern Cascades as well as the Klamath region.
Success depends upon integrating the knowledge of forest managers and
scientists. A complete agenda must address landscape-scale effects on
northern spotted owls as well as other wide-ranging species.
However, some observers have wondered if it is truly possible that
adaptive management, in concert with collaborative and social natural
resource management, can account adequately for real and perceived
risks and scientific uncertainty in addition to environmental and
social values over long- and as well as the short term. The biggest
challenge could well lie in promoting the public will for implementing
active forest management programs that seek to balance short-term
conservation needs with long term forest ecosystem sustainability. Yet,
in practice, most of these ``collaborative'' efforts have not held
together for long. To date, little interest has been forthcoming among
federal regulatory wildlife biologists and scientists for conducting
adaptive management experiments on behalf of the Northern Spotted Owl.
This Committee can do something about that. I concur with the
Recovery Plan's recommendation for a panel of wildlife ecologists,
forest ecologists and forest managers to generate the salient questions
and appropriate designs that can address them ways that maximize
effective communications among what traditionally has been somewhat
disparate disciplines. Basically, that requires significant investments
in research funding. Active adaptive management requires simultaneously
implementing more than one recovery option in areas such as the 10
federal Adaptive Management areas, the Klamath or eastern Cascades.
Those options that demonstrably provide greater success can be refined
and applied more broadly.
SOME POTENTIAL TOPICS FOR ADAPTIVE MANAGEMENT
The predictive relation between NSOs and habitat conditions is weak
and must be improved if we are ever to use habitat as a surrogate for
monitoring progress toward recovery. Doing so will require manipulative
experiments within an adaptive management framework. Maps of LSOG
forests provided a useful and commonsense place to begin designing a
sustainable recovery strategy and articulating that strategy to
Congress and the public. Yet, LSOG is a categorical description of a
particular forest successional stage, and successional stages have
never been demonstrated to have reliable predictive relationships with
demography of any wildlife species. In fact, a habitat modeling effort
in northwestern California that included only LSOG ranked about 50th
among a suite of more than 100 candidate models that were tested
against field data on NSO locations. In my opinion, habitat for the
NSO, at least in fire-prone mixed composition coniferous forests, has
been measured and modeled poorly, whereas NSO demography has been well-
captured by sophisticated statistical models.
It is oft-stated that the ``devil lurks in the details''. In the
case of the Northern Spotted Owl recovery, details that matter greatly
to the owl were overlooked in our zeal to protect LSOG forests. As
noted above, details of composition of forest trees, tree density,
understory vegetation and abiotic conditions must be accounted for.
Linking those features with measures of NSO population performance
involves detailed forest inventories, which generally have not been
available to federal researchers at a spatial scale that has been
matched temporally with information on the owl. Therefore, in addition
to supporting formal relative risk assessments, I urge this committee
to identify and allocate the necessary resources for improved forest
inventories on federal lands. Such details also provide an important
means for blending wildlife science with forest ecology.
Finally, a note about the invading Barrel Owl. As reported in the
Final Recovery Plan, some observers believe, with some limited
supporting evidence, that the Barred Owl is now the biggest threat to
NSO recovery. As a result, some believe that lethal control of Barred
Owls is necessary, at least in the short term. There is also evidence
that the Spotted Owl might be better able to exploit drier, mixed
conifer forests than Barred Owls. If that is so, it places an even
greater premium on active management to restore dry, fire-prone forests
at risk to uncharacteristic wildfires and those degraded by
retrogressive succession. This will require adaptive management
experiments to determine if forest restoration may tilt the balance in
favor of the NSO.
The Northern Spotted Owl stands a good chance of recovery if the
right questions are asked, if the habitat features that matter to owls
are measured and provided, and if Congress directs regulatory and land
management agencies in ways that can embrace and reduce scientific
uncertainty. Without such direction and without adequate funding, I
fear a legacy of benign neglect will prevail. We've made outstanding
strides. Yet there is much work, good work, still to be done.
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______
ATTACHMENT 1
This attachment provides graphics that display a portion of a
computer-based model that summarizes factors influencing habitat
selection by Northern Spotted Owls at Medford, Oregon (A), and by
California Spotted Owls near Chico California (B). The data came from
following radio-tagged spotted owls for up to 5 years in each area. The
model is known as a ``resource selection function, or RSF. The graphs
show that forest stands can be too dense for optimal use by spotted
owls, and also that different tree species have different effects on
spotted owls.
The vertical Y-axis in each graph represents the relative
likelihood of a forest stand being used by a spotted owl for nocturnal
foraging. The BASAL.FIR X-axis in each graph indicates likelihood of
use of an individual forest stand by an owl is highest at intermediate
levels of basal area of Douglas-fir trees, and suggests an optimal
range of approximately 150-225 square feet of basal area per acre.
Basal area is the sum of the cross-sectional area occupied by
individual trees. In A, the CEDAR X-axis indicates that basal area of
Incense cedar trees has a weak, but positive influence.
In B, the likelihood of use of a forest stand by a spotted owl
increased with increasing basal area of hardwoods, exemplified in the
graph by the axis labeled BASAL.HW. Hardwoods are known to be important
to the owl's small mammal prey.
The overall computer models include other factors, such as distance
to streams and basal areas of other tree species. They can be used in
conjunction with forest managers' tools such as forest-growth and fire-
risk models to estimate the relative effects on spotted owls in the
short- and long runs from thinning or partial harvests that reduce tree
densities or fuel loads. Both graphs indicate relatively high values
for forest stands with high basal areas, which often characterize old-
growth forests.
[GRAPHIC] [TIFF OMITTED] T2492.055
[GRAPHIC] [TIFF OMITTED] T2492.056
______
Response to questions submitted for the record by Larry L. Irwin,
Principal Scientist, NCAS
Questions from Congressman DeFazio
1. Do you agree with Dr. Franklin's testimony that the science in the
Draft Plan on habitat goals was flawed, and the Final Plan
largely remedies these flaws?
Scientists are risk averse by nature, and it is easy for a
scientist to identify sections of forest management or recovery plans
that may not apply all of the relevant science. Despite that, I
generally agree with Dr. Franklin, although I would describe the
science in both Plans as more or less incomplete rather than flawed.
2. Do you agree that it is in the public interest for science-based
plans such as Recovery Plan and WOPR to be evaluated and
reviewed by eminent scientists?
No. I would agree to the question if the eminent scientists chosen
for reviewers are thoroughly aware of the crucial and locally important
details. The scientific record on spotted owls, for example, is not
entirely complete, clean or clear, and the details matter greatly. In
such cases, general scientific knowledge cannot replace intimate
personal familiarity.
3. Do you agree that there are still uncertainties as to whether the
Final Plan is as effective as the Northwest Forest Plan at
protecting owl habitat?
Of course, there will always be scientific uncertainty as well as
management-decision uncertainty. I believe the Northwest Forest Plan
was deficient in several topics relative to owl habitat, and its
implementation relative to question 4 below was lacking. The new
Recovery Plan makes a reasoned attempt to remedy some important
uncertainties, yet it remains to be seen if those suggestions can be
fully implemented.
4. The plan relies heavily on ``adaptive management'', which is a
science-based approach. Given the answers to 1, 2, and 3,
should we leave implementation of WOPR and the Recovery Plan in
the hands of government agencies?
Of course, both the WOPR and the Recovery Plan are government
constructs and therefore should be implemented by cooperating
government agencies. Yet, I believe that scientists should be closer to
the proverbial driver's seat in informing land manager's decision
making. I continue to encourage both the BLM and U.S. Fish and Wildlife
Service managers to skillfully engage academic and other scientists in
formally identifying, managing, and implementing forest management in
ways that reduce the attendant risks, as stated in my testimony. In
fact, I remain hopeful that Congress can accelerate the direct
application of science as part and parcel of land management policy as
a continuous learning process, which is true adaptive management.
Adaptive management was proposed by the ISC in 1990, included in the
Northwest Forest Plan, and promoted in the Final Recovery Plan for the
Northern Spotted Owl. It was applied passively to a rather limited
extent, via trail-and-error. It has yet to be executed actively--doing
so involves embracing uncertainty in a formal manner.
5. Dr. Irwin, Dr. Franklin's testimony expresses the concern that fire
represents a great threat to spotted owls in dry forests and in
southern Oregon. Do you share this concern?
Yes. One needs to look no further than the 2002 Biscuit fires,
which apparently forced some 50 pairs of spotted owls to seek other
habitat, which, of course, doesn't exist or is already occupied.
______
Mrs. Napolitano. Thank you very much for your testimony,
sir.
I have a question to pose to all of you. Are you in a hurry
to return to where you came from? We are going to be voting for
about 45 minutes to possibly an hour. I would like to come back
and continue a line of questioning for the record. If you are
with me, I would like to know if you can be back. Those that
can, fine.
I will return then and be with you, so I will recess until
we have votes. We have about six votes. It may take about 45
minutes, and then we will be back and resume the line of
questioning. Thank you.
This will be for the record. Thank you.
[Recess.]
Mrs. Napolitano.The oversight hearing on ``Deception: Do
Endangered Species Have a Chance?'' will reconvene. I apologize
for the delay and thank you very much for standing by and
coming back.
This is a matter of great importance to this Committee,
especially to people like me who have a great concern about
some of the Administration's findings or nonfindings, if you
will, over the last few years that have placed some of our
protected species in the endangered area and how do we work
cooperatively, both the farmers, the business, the fishermen,
with the environmentalists and the scientists to be able to
ensure that we do not lose any more species forever.
I have children and grandchildren and a great-grandson, and
to me it is important that they are able to enjoy and, if you
will, see these species that still are with us, so with that I
will move on to the questions. Part of what I would like to do,
and I hope some of the other Members will come in shortly. Most
of them that I talked to have meetings, so we will accept them
as they come in.
First, to Mr. Scott Kraus. In regard to NOAA, they have
raised concerns with the sensitivity analysis conducted by the
White House Council of Economic Advisors. Apparently, the
Council changed the National Marine Fisheries Service findings
that five endangered right whales were seriously injured by
ship strikes to ``not serious.'' What is the significance to
this change, and what can happen?
Mr. Kraus. Well, it is perplexing at very best. Normally
when you run a sensitivity analysis on any kind of model like
this you want to select your data randomly, and they didn't do
that. They selected five animals. They changed their status.
I don't really understand the reasoning behind it because
it doesn't follow any accepted statistical procedures. I don't
understand the rationale. We don't understand it.
Mrs. Napolitano. Was there any explanation? Was anything
questioned?
Mr. Kraus. Not to my knowledge.
Mrs. Napolitano. Was this brought up to them at one point
or another about being too focused and not using normal and
standard procedure?
Mr. Kraus. I only have secondhand information, which
indicates that the NOAA scientists challenged the analysis as
inappropriate. That is all I know. I don't know.
You know, the scientific review that is being challenged by
the Council on Economic Advisors, we are not privy to that
external. There is no external peer review by scientists who
actually work in the field, so we don't know what they are
doing.
Mrs. Napolitano. There were no findings revealed, none
shared?
Mr. Kraus. There is no call for public review of the
findings, and there is no information that we are aware of in
the public domain.
Mrs. Napolitano. What would benefit? If there were a
change, what would you feel would be necessary to be able to
have that information shared so that there would be more--how
would I say--openness and----
Mr. Kraus. Well, transparency would help, but it also helps
to have expertise in the field in which you are being critical,
you know.
The whole field of biostatistics is quite complex and
sophisticated. It is not something that you pick up overnight,
and it is certainly not something that nonbiostatisticians
should be challenging without a comprehensive understanding of
the questions.
Mrs. Napolitano. I am assuming the economic advisors do not
have qualified scientists or scientists working for them?
Mr. Kraus. I honestly don't know but, if I were a
biostatistician, that is not the first place I would look for a
job.
Mrs. Napolitano. Thank you for your honesty, sir.
Mr. Parsons, you stated that the current management
practices and Agency policies may cause the extinction of the
Mexican wolf in the wild. Are we at the point principally
because of political calculations favoring special interests? A
failure of leadership? A lack of resources? All of the above or
any other reasons?
Mr. Parsons. Madam Chairman, I believe probably all of
those reasons have some application. I can give you a specific
example of how politics might have influenced some decisions
back in February of 2005.
This would have been at a period when the population had
just been documented by the Agency to have declined by 20
percent over the previous year. Congressman Pearce held some
meetings in the region for constituents who were opposed to the
wolf recovery program, primarily livestock interests, and
invited high level Fish and Wildlife Service officials to
attend those meetings.
Within three months of those meetings, new procedures were
proposed. One was a moratorium against any new releases of
wolves. The other was this Standard Operating Procedure 13,
which we have shown as clearly the cause for the population
decline.
So if you are applying science to an adaptive management
process and you are looking at a declining population you would
want to implement measures that would give wolves more
protection and reduce the amount of taking by the Agency
because that is the primary cause for the population decline.
Rather, the Agency issued these new procedures that would have
the opposite effect.
Now, interestingly they issued these procedures while they
were in the middle of a broader public review, an open public
comment period on their internal five-year review of the
program where they had made 37 recommendations for changes that
would be looked at in a proposed rule revision process.
In the middle of that public process, the purpose of which
was to provide the Agency with the data they needed to make
appropriate changes to the program, they interrupted that with
this process within a process to implement these new rules that
we clearly pointed out to them in our comments, which I have
submitted for the record, would cause further decline in the
population. So that is a political, I think, example.
Mrs. Napolitano. Are you aware, sir, if this interruption,
this new process that was injected in between, was added to the
review for a review of those that were supposed to----
Mr. Parsons. It was not. It was carried out as a wholly
separate process. We pointed that out in our comments that it
seems kind of odd to have a process within a process,
particularly when the overarching process is the one that is
providing you with the information to make well-considered
changes in the program.
Mrs. Napolitano. Is that five-year review a mandate?
Mr. Parsons. It is not a mandate, but it is published and
accepted now.
That was finished in I think July of 2006 with 37 specific
recommendations--these are internal--from this Adaptive
Management Oversight Committee which the Service adopted
exactly as presented, even though there was a large body of
science-based public comment that countered many of those.
Those are now adopted and will actually guide the Service
internally in this rule revision process.
Mrs. Napolitano. So, in essence, the recall for a five-year
review is not something that they are going to be utilizing.
Rather, they will use the new process?
Mr. Parsons. Well, they should be utilizing it. It is
actually required in the regulation that reviews be done at
three and five years and so that is why they were doing that
review. It was a legal requirement.
Mrs. Napolitano. Well, that is why I asked initially if it
was a mandate, a legal requirement.
Mr. Parsons. Sorry. I misunderstood. Yes.
Mrs. Napolitano. OK.
Mr. Parsons. Resources you asked about, if I may. So far
there have been 26 wolves taken illegally by nongovernment
personnel--poaching, if you will. Only one of those cases has
been resolved from a law enforcement perspective.
In other words, there has only been one arrest and
conviction on 26 cases and so that might suggest that from a
resource standpoint they could use some more law enforcement
help out there to try to catch these poachers.
Turnover in the personnel in the program both at the
Federal and the state level is rampant. There is constant
turnover, and right now they are in the middle of catching up
again and staffing up to adequately run the program.
Mrs. Napolitano. OK. So there are other inherent issues
involved in being able to protect the Mexican wolf I am
hearing?
Mr. Parsons. Yes. Law enforcement is a big one, but I
should point out that the amount of wolves being taken out by
the Agency through these management measures that I think are
out of line is three times those that have been taken out by
illegal activities.
Mrs. Napolitano. Are you aware of any instances where the
wolves may have been enticed or baited into situations
resulting in livestock depredations?
Mr. Parsons. Yes, ma'am. There was an article published in
the High Country News late last year, late December, where a
rancher in the area, according to the reporter, explained to
him how he conducted a branding operation within a half mile of
a known den site for the Mexican wolves and then later that
evening left a pregnant cow who was expected to give birth that
night out unprotected on the open range in the vicinity of that
den with the idea that it would cause a depredation.
This was a situation where the wolves in the area had two
depredations already. A third would mean that the Agency took
them out. In fact, that depredation did occur that night. The
Agency, not knowing that it was a set-up, went in and actually
killed a wolf, the alpha female of a pack there called the
Durango pack.
As a result, the rancher submitted claims to the Defenders
of Wildlife for compensation for those animals and received I
believe $2,400--$2,000 for the mother cow and $400 for the calf
as if it would have grown up and be sold at market.
Whether it is true or not, because the rancher has since
denied having said those things once the article came out.
Whether it is true or not it illustrates the perverse incentive
of having a wolf control program operating simultaneously with
a wolf compensation program.
You know, I in my own mind predicted that such a scenario
might play out, and it looks like it has.
Mrs. Napolitano. OK. Thank you very much.
For Mr. Scott Hoffman Black. GAO's review found that
someone besides Julie MacDonald overrode scientists'
recommendations to list the Miami blue butterfly. Scientists
had found that three of the five factors determining whether
the listing is warranted were met.
Does the Endangered Species Act allow listing officials to
ignore scientists' recommendations to list a species because a
state management plan or captive bred population exists?
Mr. Black. No, it does not. The Endangered Species Act does
not allow for the Federal government to pass off responsibility
to the states, which is basically what that official in this
case was saying that he did. He was passing off responsibility
for management of this species from the Federal government to
the state.
Also, I would contend that even though the state--and I
want to commend the state--the state stepped in where the
Federal government would not, and has actually tried to be a
good actor in protecting the species. That said, their
Endangered Species Act is not nearly as strong as the Federal
endangered species statute, so they are not able to truly
protect this animal.
When the U.S. Fish and Wildlife Service made this decision,
or one official it seems made this decision, there were less
than 100 butterflies out there. I mean, we are talking about
100 butterflies. They are almost gone, yet the Federal
government said that this species did not meet the definition
of being endangered under the Endangered Species Act.
Mrs. Napolitano. Based on what findings?
Mr. Black. Well, they based it--and we have been seeing
more of this--they have based it on what state government was
going to do for the species. They based it on a future
projection that the state would be able to manage and protect
this species and recover it is basically what they did.
Mrs. Napolitano. But was there consultation with the state
to be able to come to that decision?
Mr. Black. I wasn't in between them and the state, but as
far as I know, no. The state moved forward on their own because
the Federal government was not moving forward. The state
stepped up. They were a good actor. They listed the species.
They funded a captive rearing program.
As we know from Dr. Jaret Daniels, who is the world expert
on this species, that has not been enough. We really needed the
Federal listing of the species so that we could really come up
with good recovery areas, have the funding to actually recover
the species.
Also a big issue has been mosquito control. We are all
concerned about mosquitos and mosquito borne diseases, but in
Florida mosquito control trumps their endangered species law so
there are areas that you cannot recover this butterfly under
the state statute because there is mosquito control going on at
those sites, so an endangered species listing was truly
warranted, and they should have taken action.
Mrs. Napolitano. But did the mosquito control abatement
possibly hurt the butterfly?
Mr. Black. Undoubtedly. One of the stated reasons for the
decline in this butterfly is pesticide use for mosquito
abatement. They think that largely losses on the mainland were
due over decades to mosquito control.
Mrs. Napolitano. That is interesting because in my area,
back in my former days, we worked with vector control, and part
of that was mosquito abatement. What they did was they
sterilized mosquitoes and released them.
That seemed to be very, very effective at that point. This
is I am talking 10 or 12 years ago. I am not sure whether any
technology is being used, but certainly there are predatory
animals for mosquitoes that possibly could be bred to be maybe
more--I don't know. I am just reaching. Besides using
pesticides that are going to harm other species.
Mr. Black. There are many other options for mosquito
control other than broad spectrum insecticides. The problem
often is county governments who often run the vector control
boards want to look like they are taking action, and having
spray out there looks like they are taking action, even when
oftentimes the efficacy, the effectiveness, of that spraying
program nobody has even seen whether they are working or not.
So that said, there are other options.
Mrs. Napolitano. Yes. I think you go beyond that because
some of those pesticides are going to go into your groundwater.
Mr. Black. Yes, undoubtedly in the future. You know, it is
an interesting conundrum because we have ramped up pesticide
use for mosquitoes. We are getting a little off the Endangered
Species Act, but for mosquitoes because of West Nile virus.
I feel really bad for anybody whose family member has died
of West Nile. I have two children. I would not want to see that
happen. That said, we really don't know the ramifications of
this ramped up pesticide use on our water quality, on cancer
rates or on the decline in species.
Mrs. Napolitano. Has the state done any research, done any
kind of R&D, to be able to determine whether or not that has
hurt more than helped?
Mr. Black. Most states do not, and I don't know if the
State of Florida has done that research on that efficacy, but
the problem usually is that most of these mosquito abatement
boards are county so that it is this diffuse network of county
boards that do mosquito abatement, oftentimes communicating
some with other counties, but there is usually not an umbrella
in many states, and again in Florida.
But the main issue is the Fish and Wildlife Service had
jurisdiction over that species. It was truly endangered.
Everybody in the Agency from the field office to the regional
office to the national office agreed that it should be listed,
and it sounds like one person made a decision that it
shouldn't.
Mrs. Napolitano. Thank you very much.
I would like to call on my colleague, Mr. Holt. Thank you
for coming, sir.
Mr. Holt. Thank you, Madam Chair. I thank the witnesses for
coming today on this serious issue.
There is so much to talk about regarding science and
environmental protection in general, but let me begin in the
limited time I have to direct a couple questions at Scott Kraus
if I may.
In documents we have, NOAA has raised concerns with the
sensitivity analysis conducted by the Council of Economic
Advisors. Evidently the Council changed the determinations made
by the National Marine Fisheries Service from a category of
``seriously injured'' for whales to ``not serious.''
I would like to know what is the assessment of the process
that the National Marine Fisheries Service uses to determine
the seriousness of an injury and whether this change was
appropriate or how it came about. It seems a little puzzling to
me that someone within the Beltway would somehow change the
designation of something that happened in the field.
Mr. Kraus. Well, the serious injury determinations are made
by a panel of veterinarians and biologists familiar with the
animals, and they have a pretty rigorous review process that
goes on as animals are being assessed. It is actually an on-
line process.
It is pretty much informed by the science. That is to say
because we track all right whales in the North Atlantic
individually, we know a lot about the outcome of injuries that
happened in the 1990s or earlier and so we actually know quite
a bit about when an injury is serious or not, and all that
information is fed into the assessment that NMFS makes about
whether an injury is serious or not.
As for the way the Council looked at or pulled out or
changed the assessment, it appears to be wholly inappropriate.
Mr. Holt. How did the change actually take place? Do you
know?
Mr. Kraus. I don't have that information. I understand they
changed five animals from ``considered to be seriously
injured'' to ``nonserious injuries,'' but the rationale for
that is not clear.
Mr. Holt. Am I correct that this seemed to be a change that
was made inside the Beltway?
Mr. Kraus. I believe that is correct.
Mr. Holt. OK.
Mr. Kraus. It was done by the Council.
Mr. Holt. Not many whales come up the Potomac, I guess.
Mr. Kraus. Probably a limited amount of expertise in that
area, yes.
Mr. Holt. OK. Thank you, Madam Chair. If I may, I will
proceed with some other questions.
Let me turn if I may to Francesca Grifo. Your organization
and others have published a great deal about the perversion or
misuse or abuse of science and a good process for answering
questions about endangered species and a number of other
things.
What steps should the Department of the Interior and the
Fish and Wildlife Service take to ensure scientific integrity?
Do you have specific recommendations that we should somehow
codify, whether in law or in procedure?
Ms. Grifo. Thank you for that question. I like to say that
this is a very depressing and disheartening problem, but it
certainly is not a problem without a solution, and I think it
is important to talk solutions.
Mr. Holt. And if I may say, in asking the question really
what I meant is how we can get both good process for good
decisions, but also good support and protection for those
making the decisions so that we can get good decisions.
Ms. Grifo. Absolutely. We have solutions that I will get to
in a second that are very specific to Interior and this
particular problem, but I do want to say, because I think what
you are referring to are these broader issues that really
affect Federal science as a whole.
As you say, we have published a lot, and I would just refer
you to ``Federal Science and the Public Good,'' which really
does have a very extensive solution section that cuts across
agencies and gets at some of the issues that have come up here,
issues of protecting scientists, issues of transparency, issues
of the way science gets into the decision-making process and so
on, all of which are very important.
Specifically in terms of Interior, I guess it is
particularly disheartening to be here a year later, having made
a lot of these same claims and allegations and provided a lot
of evidence a year ago, and yet what have we seen? My mind goes
to something that perhaps we can do immediately.
I mean, one is obviously the Whistleblower Protection Act
is sitting right now in a conference committee. The House
version, which was passed by a great majority, has specific
protections for scientists who want to allow the world to know
that this kind of interference is taking place.
The Senate version does not, and obviously it is very
important that that House language stays in the Senate version.
I realize I am speaking to the converted here, but nonetheless
that is happening right now.
Another thing that could happen right now is that each of
these bad decisions has enumerable consequences down the line,
biological consequences for the species that we are talking
about, as well as land use decisions that are made, so when you
start with nonrobust science the consequences just explode
outward in large, concentric circles, and so I guess I would
hope that perhaps this Committee could work closely with the
Appropriations Committee to say, ``Let's stop funding the
consequences that are coming out of these decisions that we
know are tainted.''
I mean, we have presented a list of 80 species that are
just a compilation of many different investigations, so we know
there are a large number of things happening, a lot of species
that were interfered with in Interior, and it seems that
perhaps that tool might help us to slow down those consequences
while we systemically and systematically go back in and take
away the causes.
But in addition to that, obviously the ethics policies that
are out there are not working. There are problems with both the
Professional Code of Conduct at Fish and Wildlife in that it is
only Fish and Wildlife. It doesn't extend to Interior. It
doesn't extend to those very important conversations between
Interior and Fish and Wildlife and so on.
Mr. Holt. Would you say that code of conduct is worth
extending?
Ms. Grifo. Yes. I believe there is a basis in there of a
good first step. I mean, as in all of these things, it would be
great if there was a process that involved stakeholders and
comment on what these policies should look like, but it is a
very good first step I would say.
Mr. Holt. Would any of the other witnesses care to comment
on that request?
Ms. Grifo. Yes. I mean, it is not perfect. Don't get me
wrong. Yes.
Mr. Holt. Yes, sir?
Mr. Irwin. Thank you very much for the opportunity. As a
scientist, you should know that science isn't pure. There is
good science and there is not so good science. The process of
delivering good science is fraught with human frailty because
some people don't like the new science that might be coming
out.
I just want to point out to you that it is a brutal
process. We muddle through much like the attorneys do and our
lawmakers, but it is not perfect.
Mr. Black. I would just like to concur.
Mr. Holt. Of course, I must say part of the point of
science is to have a process to protect our ourselves from
self-deception and imposed deception. It is that process that
allows fallible scientists to do excellent work. It is the
process that appears to me to have been compromised and
contaminated in a number of instances.
Yes, sir?
Ms. Grifo. Go ahead.
Mr. Black. I just wanted to concur with Dr. Grifo that it
is a good first step, but even within the U.S. Fish and
Wildlife Service I am a scientist. We are not an organization
that--you know, we are not one of the legal eagles out there.
We work science-based to try to work with scientists on land
management issues.
I get calls from Fish and Wildlife Service scientists from
their home because they don't want to speak out--they feel they
can't speak out--on some of these issues, and we really do need
to extend that code of conduct and maybe even make the code of
conduct more rigorous so that doesn't happen.
I should never get a call at night from somebody who is
concerned about their job to tell me something that they should
be able to tell everybody in the light of day. That is all I
wanted to say.
Mr. Holt. Have you looked at the whistleblower protections
that are currently in conference here? Do you think that would
provide enough protection so that the scientists wouldn't have
to call you at home and interrupt your weekend?
Mr. Black. From what I know and from the House version, I
believe that it would. Of course, Dr. Grifo can speak to that
much better than I can.
Mr. Holt. OK. Thank you.
Ms. Grifo. I just want to add that in my testimony there
are some concerns about that Fish and Wildlife code. It is not
perfect. I just don't want to leave that impression.
Mr. Holt. Yes. Thank you.
Mr. Parsons. If I may briefly? We heard this morning in the
Agency's testimony common reference to a term called adaptive
management, which in fact is a very rigorous, science-based
process for making decisions where you obtain data through
monitoring and research, and then you feed that back into the
front end of the process and make decisions that make sense
based on the science.
Just a brief example from the Mexican wolf program is this
five-year review that resulted in 37 internal recommendations
for improvements to the program. When we analyzed those through
the Rewilding Institute, and I should add we have a cadre of
Fellows, some of whom are world-renown scientists like Dr.
Michael Soule, for example, who look at our comments and sign
onto them.
We found that none of those 37 recommendations would have
any identifiable positive effect on the status of the Mexican
wolf for years to come, two to three to perhaps several more
years. In fact, there were four of those provisions that we
expect would have such a negative influence on the program that
within our community we dubbed them the four poison pill
provisions of the 37 recommendations for how the project should
be changed.
Now, this is guiding at least the internal process of a
rule revision that is now in a NEPA process. The scoping is
done, and they are going to be developing a draft EIS. They use
that term ``adaptive management'' a lot, but I think it is
being used very loosely and more as a buzz word to make us
think they are doing that when, in fact, they are not.
Mr. Holt. Thank you.
Thank you, Madam Chair.
Mrs. Napolitano. Thank you.
Mr. Wittman? Thank you for coming, sir.
Mr. Wittman. Thank you, Madam Chair. I have a question for
Mr. Irwin.
I am curious if you could explain to us the concept of
adaptive management and just kind of give us a brief overview
of that concept?
Mr. Irwin. We just heard a comment on that from my
compatriot here, but I would broaden it a little bit in that
true adaptive management, as it might apply to forest
management, links researchers and scientists with managers to
identify possible solutions to various problems, implement more
than one solution or one feasible solution simultaneously,
evaluate the consequences perhaps on a relatively small area
and choose which of those options seem to work, discard those
that do not. That is the true concept of active adaptive
management.
The way it has been practiced is passive adaptive
management, which is what Mr. Parsons just described to you,
where learned people get together, decide the best direction to
take, determine later whether that was right or maybe needs
some adjustment with new information. That is the passive
process.
The active process implements more than one option
simultaneously, gathers scientific data and proceeds
accordingly.
Mr. Wittman. Another question. You state that in certain
forest types, such as mixed conifer stands with Ponderosa
pines, density of large trees and overstory canopy are not
strong indicators of northern spotted owl preference.
Has anybody identified what those strong indicators might
be within certain forest types? Would adaptive management aid
in discovering accurate indicators? If so, maybe can you
explain how?
Mr. Irwin. Well, indeed we have been working cooperatively
with the Forest Service, the BLM, two state forestry agencies
and a number of private companies who asked that very question.
We know now that the details matter.
It turns out that when you examine where spotted owls spend
their time and compare that to random positions on the
landscape you find that a number of factors influence their
decisions on where they go, particularly where they feed. It
turns out that large trees are not one of those. Canopy cover
of overstory trees is also not one. Those two are two factors
that are used in decision making.
The owls don't make their decisions on that basis. They use
understory vegetation, shrubs primarily because that is where
they find their small mammals prey, and they know the
difference between apparently whether the tree is an old growth
Ponderosa pine or an old growth Douglas fir. They don't like
the pine.
One of the difficulties in forest restoration, particularly
in the pine/fir zone, is that many folks would like to see
these large, old growth Ponderosa pine trees with a grassy
understory. That is wonderful old growth Ponderosa pine. It is
very poor spotted owl habitat.
Part of the distinction regarding adaptive management is to
understand what those details are and then implement them in
management practices.
Mr. Wittman. When you talk about forest management
activities and spotted owl populations, do you believe that
they are mutually exclusive?
Didn't some of the science used by the draft recovery plan
which has since been shelved show some scientific support for
owls responding positively to a forest management prescription
that develops these different types of habitats so that you
have some diversity there with habitat as it relates to forest
management and owl habitat?
Mr. Irwin. Very much so. That is especially true in mixed
conifer zones, on the east slope of the Cascades and Oregon and
Washington down to the California Cascades and the conifer
forests in Oregon and Washington Klamath zone as well.
We know that a mixture of conditions is important, and I
think it is going to take adaptive management, monitoring and
research to identify what the optimal situation is. From our
own work through the past 10 years, it appears that an
intermediate density of forest is best for the owl. It allows
for the prey to propagate, and it allows for the owls to
actually capture the prey.
Most people believe that similar silvicultural applications
do not apply in the Douglas fir/hemlock zone, the so-called
moist forests that occur in western Oregon and Washington. I do
not agree with that. There is strong information now that
demonstrates that riparian zones all over the range of the owl
are very important. These are moist sites close to small
streams. Not to major rivers, but to small streams.
In those sites all across Oregon and Washington our
custodial management strategy--that is no-touch riparian
management--is not the right thing to do for owls because new
research for the Forest Service demonstrates that we will lose
hardwoods. Hardwoods have been demonstrated to be important to
spotted owls and their prey, so these sites have to be managed.
They were, in fact, intended to be managed under the
Pacific Northwest Plan in 1994, and they were ranged as interim
riparian zones. The adaptive management never happened.
Mr. Wittman. One more question for Mr. Parsons. When you
talk about issues with wolves in talking about what role humans
need to play with wolves, in a situation where a wolf may be
jeopardizing a human's life do you think in that particular
situation that a taking of a wolf is substantiated?
Mr. Parsons. Absolutely. That is written into the Act. It
is written into our regulation.
In fact, one person has used that provision for taking a
wolf when he thought--it remains to be known for sure if he
truly was threatened, but he thought he and his family were
being threatened when they were camping. It was the very first
wolf shot in the program. He shot the wolf, and he was not
prosecuted for that.
Mr. Wittman. Very good. Just one additional question. In a
situation with a rancher, if he has a situation where a Mexican
gray wolf is killing his livestock, in that situation should
that rancher be allowed to take that wolf in that situation?
Mr. Parsons. There is a provision in the regulation for
that as well that applies to private property. If the rancher
observes a wolf attacking livestock on his private property he
can kill that wolf under the provisions of the rule, no
questions asked other than there has to be evidence, of course,
that that was the situation.
There is another provision that moves that opportunity onto
public grazing lands when and if there are six or more breeding
pairs present. Then the Fish and Wildlife Service is allowed to
issue a permit, a limited duration permit, to a rancher to have
the same opportunity to protect his livestock.
We have not gotten to the stage where we have enough
breeding pairs to trigger that regulation for more than just a
few months.
Mrs. Napolitano. All right. Thank you very much for your
questions.
I would like to introduce into the record testimony from an
oversight hearing of July 31, 2007, from Mary Kendall, Deputy
Inspector General. I would like to quote line numbers 1631 to
1647, and I would like to ask the questions based on this.
This states that: More than five years ago, following our
investigation into allegations of tampering in a scientific
field samples and findings related to an Endangered Species Act
study, we recommend that the Secretary ask the Department's
Chief Scientist to convene a working group consisting of
internal and external scientists to review and make
recommendations on how to restore rigorous science to the
Endangered Species Program and to design and implement a
Department of Interior scientific code of ethics.
Has that been accomplished? Does anybody know?
Mr. Black. Not to my knowledge. It has not.
Mrs. Napolitano. OK. Then the next one, continuing on Line
1640: ``While an effort was undertaken to develop a draft code
of scientific conduct, it has never been finalized or issued
Department-wide. While we believe that this code needs to be
revived in its present form applicable primarily to employees
and volunteers who participate in the hands-on scientific
activity, we also believe that it needs to be expanded to
specifically include policymakers like Ms. MacDonald.''
Has that draft code been started, implemented or otherwise
worked on that you know of?
Ms. Grifo. Actually I think the bigger issue here is that
there are a number of these codes that have come and gone, but
none of them have been publicly available.
We have been able to get bits and pieces by FOIA and so I
think that as this procedure happens we need to have a way that
when these things are in draft, when these things are
finalized, they come out to the community at large so that we
can know. I mean, there is a reason why we are not able to
really answer these questions because those things have not
been broadly shared.
Mrs. Napolitano. My understanding is that the Inspector
General has indicated that they have not been given or
implemented Department-wide. Is that correct?
Ms. Grifo. I am sorry. You know, not over the whole
Department of the Interior.
Mrs. Napolitano. OK.
Ms. Grifo. Right. Yes. I mean, within Fish and Wildlife we
know that one is out, but in terms of Kempthorne's 10 point--I
can't remember the name of it, but the 10 point thing that he
came out with. I mean, that one has major problems. It came out
and then a month later a lot of it was withdrawn in terms of
there were lots and lots of issues with it.
As I say, I mean, the key point here is that drafts are not
easily available. The process is not transparent. I mean, that
is the key take-home message.
Mrs. Napolitano. And that is the message from--?
Ms. Grifo. Well, from I think those of us on the outside
that want to understand how Fish and Wildlife works, how
Interior works, those of us who are taxpayers, citizens,
fishermen, hunters. I mean, any of the stakeholders or
constituencies.
I think in order for us to do our jobs as being a
stakeholder and a constituent of this Department and the
agencies within that Department, transparency is what allows us
to know what is going on and be a part of these processes and
weigh in.
Mrs. Napolitano. Thank you. Thank you very much.
Mr. Wittman, any other questions?
Mr. Wittman. No.
Mrs. Napolitano. Panel, we want to thank you wholeheartedly
for your patience and indulgence and for your very insightful
testimony.
We will follow up with questions. We have up to 10 business
days to submit any additional questions, and I believe I have a
statement from The Honorable Doug Lamborn for the record dated
May 21 and also it is a report from the Hoopa Valley Tribal
Council for the record.
Without objection, I will so order.
With that, you have 10 business days to provide any
additional information.
Anybody in the audience who has information to submit or
questions to submit, we would appreciate that.
I appreciate all your participation and your being again so
patient with us. With that, this hearing is adjourned.
[Whereupon, at 2:43 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows:]
[A letter submitted for the record by Craig Manson, Former
Assistant Secretary for Fish and Wildlife and Parks, U.S.
Department of the Interior, follows:]
Craig Manson
Attorney at Law
P.O. Box 5694
Sacramento, California 95817
(916) 844-4979
[email protected]
CA State Bar No. 102298
May 29, 2008
Gene L. Dodaro
Acting Comptroller General
Government Accountability Office
441 G St., NW
Washington, DC 20548
Subject: GAP Report 08-6881, U.S. Fish & Wildlife Service, Endangered
Species Act Decision Making, May 21, 2008
Dear Mr. Dodaro:
I am alive. As far as I know, I have been continuously alive since
the autumn of 1954; that would mean that I was alive, and available for
consultation during the time that your staff was putting together the
above-referenced report.
I served as Assistant Secretary of the Interior for Fish and
Wildlife and Parks during most of the time of the events mentioned in
that report; therefore, I found it remarkable that your staff did not
contact me before making the inaccurate and ill-informed statements
contained in that report. My present whereabouts are publicly available
in many sources.
I was outraged to read in the press that your staff member Robin
Nazzaro told the Committee on Natural Resources of the House of
Representatives that I and three other individuals as officials of the
Department of the Interior, as The Associated Press reported the
matter, ``may have put political pressure on lower-ranking employees
who were deciding endangered species cases.'' Having absolutely no
evidence of such a conclusion, Ms. Nazzaro eructed this disgusting
innuendo and let it hang before the Committee and the public, not
having had the good manners to tell me or the other individuals that
she was going to do so. Even in what passes for etiquette in official
Washington, her action was unprofessional.
The Endangered Species Act is, by its own terms, the responsibility
of the Secretary of the Interior. As Assistant Secretary for Fish and
Wildlife and Parks, a Presidential appointee confirmed by the Senate, I
exercised authority delegated by the Secretary. Furthermore, the
Assistant Secretary has the statutory responsibility to supervise the
Director of the United States Fish and Wildlife Service. 16 USC
Sec. 742b(b). In carrying'' the statutory mandates and the delegated
powers of the secretary, I alone was responsible for decisions made
under the Endangered Species Act from February 19, 2002 to December 31,
2005. Your staff either did not know this (which would be bad enough)
or deliberately disregarded it for reasons I cannot fathom.
There is no ``political interference'' when a duly appointed
official performs his or her statutory duties and exercises discretion
under the law. As Justice Stevens noted in Chevron USA, Inc., v.
Natural Resources Defense Council, 467 U.S. 837 (1984), ``an agency to
which Congress has delegated policymaking responsibilities may, within
the limits of that delegation, properly rely upon the incumbent
administration's views of wise policy to inform its judgments.'' There
is a reason that we have elections in America.
Your staff's report focuses on several determinations under the
Endangered Species Act that allegedly were improperly influenced by my
deputy, Julie MacDonald. In fact, in each of those actions, I either
took the final decision or endorsed to the Secretary the decision of
the Director of the Fish and Wildlife Service. Ms. MacDonald had no
power in law or in fact to ``make decisions'' under the ESA and she did
not do so.
Ms. MacDonald*s role, for which I hired her in 2002, was to insure
that the Fish and Wildlife Service presented credible and reliable data
upon which decisions could be taken under the law. She did that very
well. Indeed, the report illustrates the success of her work by this
comment:
Service staff described a climate of ``Julie-proofing'' where,
in response to continual questioning by Ms. Mac Donald about
their scientific reasoning, they eventually learned to
anticipate what might be approved and wrote their decisions
accordingly.
Anyone with a liberal education will immediately recognize in that
comment the successful application of a Socratic approach, which in
this case yielded documents based on better data and led to decisions
ultimately based on the best scientific data.
Your staff's report sets out eight actions in which apparently
there was concern about ``political interference.'' All but two of
those actions were critical habitat determinations. In most of these,
Ms. MacDonald's involvement is described as ``reducing'' the acreage
for the critical habitat. This is incorrect and misleading.
First, as I have noted, I, and not Ms. MacDonald, made the decision
to ``reduce'' the critical habitat acreage. My signature is to be found
on those rules. And I did not simply rubber-stamp the work of others;
that is not my style. I examined the rules myself.
Second, the Endangered Species Act requires that the Secretary take
into account ``the economic impact, the impact on national security,
and any other relevant impact,'' before designating critical habitat
for a species. The statute gives the Secretary discretion to ``exclude
any area from critical habitat if [the Secretary] determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat,'' unless extinction of the
species would otherwise result. 16 USC Sec. 1533 (b) (2). In exercising
the delegated powers of the Secretary, I followed the statutory mandate
to consider economics, national security, and other relevant factors,
and then I exercised discretion in to determine whether certain areas
should be excluded from critical habitat. This exercise of discretion
was informed by the statutory factors, including the best available
scientific and commercial data. There is no ``political interference''
when an official acts within the terms of the law and exercises
discretion that Congress has granted.
I must comment also on the case of the Palos Verdes blue butterfly
which is mentioned in the briefing annexed to the report. This was the
very first ESA matter that I handled as Assistant Secretary. Within
days of my arrival, I was summoned to a meeting with the Member of
Congress who represented the district wherein the Palos Verdes blue
butterfly is found. The Member had also summoned an Assistant Secretary
of the Navy. The Member was concerned that the Navy's plans to close a
facility in that district were being thwarted by the insistence of the
Fish and Wildlife Service that a ``consultation'' under Section 7 of
the ESA was required and that the Service could require mitigating
conditions if the closure action and subsequent transfer of the
property to the Department of Housing and Urban Development was found
to ``jeopardize the continued existence'' of the Palos Verdes blue
butterfly. The Member's interest was that the Member wanted to see a
program for the homeless moved into the soon-to-be vacated Navy
facility.
The 'Navy disagreed with the requirement for a section 7
consultation and so did the Member of Congress. However, it seemed
clear to me that there had to be a consultation, and I said so. The
issue then became whether HDD or the Navy had to do the consultation.
After conferring with Interior lawyers, I determined that HUD was the
party responsible for the consultation on the facts of this matter. HUD
resisted doing the consultation and there followed an extended period
of negotiations and discussions with HUD and the Fish and Wildlife
Service. In the meantime, I continually received telephone calls from
the Member or the Member's staff urging that the issue be resolved. By
the time I hired Ms. MacDonald, the issue was still outstanding and the
Member had grown quite frustrated. The Member blamed the Fish and
Wildlife Service for insisting on the consultation, which to me was
required by the law.
Having little time to devote to the matter personally, I turned the
matter over to Ms. MacDonald, who handled it efficiently and brought to
a satisfactory conclusion, in that conclusion, we did not accede to
many of the demands of the Member, some of which clearly would have put
politics before science.
In conclusion, there is not a single example in your report of
``political interference'' with decision-making under the Endangered
Species Act. Instead, the report illustrates that some people plainly
were unaccustomed to the required rigor that my office brought to the
decision-making process. This rigor actually improved the scientific
aspects of the Department's responsibilities under the Act.
I find it regrettable that your staff was so easily misled by the
uninformed views of largely anonymous sources. That creates an
impression of sloppy and partisan work in contravention of the high
regard usually accorded your office.
Sincerely,
CRAIG MANSON
______
[A statement submitted for the record by Doug Robertson,
Commissioner, Douglas County, Oregon, follows:]
Statement of Doug Robertson, Commissioner for Douglas County, Oregon,
and President, Association of O&C Counties
The Association of O&C Counties represents the interests of 17
Counties in Western Oregon within which lie 2.1 million acres of BLM
managed O&C Lands. This Association has represented County interests in
the management of these lands for over 80 years and was a participant
in efforts to secure passage of the O&C Act of 1937. The Association is
pleased to provide Chairman Rahall and the Committee information about
this unique category of lands.
The O&C Lands provide habitat for Northern Spotted Owls and other
species listed under the Endangered Species Act (ESA). At the same
time, communities are very reliant on the O&C Lands for jobs and other
economic benefits. County funding traceable to the O&C Lands is
critically important, in several cases representing half or more of all
funding for general fund budgets and the many public services provided
through general fund expenditures. No discussion about the
administration of the ESA is complete without consideration of the
community impact--the human impact--that results from strategies for
the protection and restoration of listed species.
Most of the O&C Counties are located in an economically troubled
part of the region, where the unemployment rate exceeds the Oregon and
the National unemployment rates. This region is dominated by public
land ownership that is not subject to property taxes. Douglas County,
for example, has more than 50 percent of its land in public ownership.
Some of the O&C Counties have more than 60 percent of their land in
public ownership. The principal industry in these areas was once the
timber and wood products industry, which has been in a decline
corresponding to the period of increasing protections on Federal forest
lands for ESA listed species.
Douglas County is at the center of the O&C region. In 2006, while
most of the nation was booming and enjoying unparalleled prosperity,
Douglas County saw an increase in the number of people living in
poverty, from 11.8 percent of the population, to 16 percent of the
population. During this period, there was a corresponding increase in
the number of children living in poverty. By 2007, fully 25 percent of
all children in Douglas County were living in poverty. This is a
shocking and disturbing statistic that ought to generate a sustained
outcry. It is particularly disturbing in light of a small increase in
the median income in Douglas County during the same period, clearly
illustrating that younger families most in need of family wage jobs are
the ones being left behind. And as the economic conditions in the rest
of the country have declined over the last year, the conditions in
Douglas County have declined further as well.
The need for services provided by County governments increases as
the economic stresses in the private sector increase. Unfortunately,
the decline in private sector economic activity attributable to
withdrawal of Federal timber resources has been paralleled by a decline
in shared timber receipts available to County governments to pay for
health services, law enforcement and corrections, services for
veterans, drug treatment and prevention programs, libraries, programs
for at-risk youth, and all the other many services paid for from County
general fund budgets reliant on O&C shared timber receipts. Federal
safety net programs have been much appreciated and are the only way
many Counties are avoiding insolvency, but the future of the safety net
is uncertain, at best. The only hope many of the O&C Counties have of
sustaining themselves is restoration of a reasonable level of timber
harvest on the O&C Lands.
The O&C Counties do not ask that the needs of ESA listed species be
ignored. To the contrary, we support protection and restoration of ESA
listed species as a national priority. We ask, however, that those
responsible for development of strategies for species protection and
recovery reciprocate, acknowledge the unique legal mandate applicable
to the O&C Lands, and be willing to fully consider the needs of local
communities, so that adverse impacts are minimized. Any Federal
wildlife policy that ignores human impacts may succeed in protecting
individual species in the short term, but it compromises the legitimacy
of government and imperils the long-term viability of the law driving
the policy.
The importance of the O&C Lands to Counties and communities is best
understood in light of the unique history of these lands, which
uniqueness is illustrated by the differences between BLM managed O&C
Lands and National Forests and other categories of Federal lands. To
summarize the key differences:
--The O&C Lands were once in private ownership, but were taken
back into Federal ownership after being on the property tax
rolls for decades. National Forest lands have never been
privately owned.
--The O&C Lands are dedicated by Federal law to the dominant
use of sustained yield timber production for the benefit of
local communities. National Forests are multiple use lands with
no one use being dominant, and are managed for the benefit of
the nation.
--The O&C Lands are scattered in small parcels in a
checkerboard pattern interspersed with private lands across
western Oregon. National Forests are typically very large,
contiguous blocks of land.
--50 percent of the revenue from the O&C Lands is shared
directly with all the O&C Counties based on a formula,
regardless of where the timber harvest occurs. An additional 25
percent of revenues to which the Counties were entitled under
the O&C Act have been voluntarily returned to the federal
government to invest in improvements intended to enhance the
land's productivity. Shared revenues from National Forests are
limited to 25 percent, which is paid to the State for
redistribution to the Counties in which the National Forest
having the timber harvest occurs.
--Shared revenue from the O&C Lands is unrestricted and can be
used by a County for any purpose as part of a County's general
fund. Shared National Forest revenue can be used only for roads
and schools.
A. History of the O&C Lands.
Between 1866 and 1870, Congress provided for grants of nearly
4,000,000 acres of land in Oregon to the Oregon and California (O&C)
Railroad Company. The land grants were given in exchange for a
commitment to build a railroad through Western Oregon from Washington
to the California border. The lands were conveyed to the Railroad
Company with the proviso that they be sold in 160-acre parcels to
``actual settlers'' for $2.50 per acre. The purpose of the land grants
under these conditions was to promote the settlement and development of
Western Oregon.
The railroad was built, but the Railroad Company failed to honor
its obligation to sell O&C Lands to ``actual settlers,'' in many cases
selling the lands in large blocks to speculators, or retaining the land
itself. After decades of controversy, including action by the U.S.
Attorney General and the U.S. Supreme Court, Congress responded with
the Chamberlain-Ferris Act of June 9, 1916, ch. 137, 39 Stat. 218,
which declared that all grant lands still held by the Railroad Company
were revested in the United States, and provided for compensation to
the Railroad for the O&C Lands thus revested. After decades in private
ownership and on tax rolls, the lands reverted once again to Federal
ownership
Had the lands not been taken back by the Federal government, they
would have remained in private ownership, providing an economic base
for private industry and a tax base for local governments. Congress
recognized that revestment deprived much of Western Oregon of an
important part of its economic foundation. The Chamberlain-Ferris Act
therefore established the ``Oregon and California Land-Grant Fund''
within the United States Treasury, and provided a method for
distribution of income from the lands. Once certain debts were paid,
funds were to be distributed 25 percent to the O&C Counties, 25 percent
to the State of Oregon and the remainder to the United States. The
distribution method was designed to compensate the state and county
governments for the fact that they derived no tax benefits from the
revested lands. See, Clackamas County, Oregon v. McKay, 219 F.2d 479,
483 (9th Cir. 1954), judgment vacated as moot 349 U.S. 909 (1955). The
policy at the time was to continue to dispose of the revested lands, so
that they would be returned again to private ownership.
The Chamberlain-Ferris Act distribution method did not work.
Between 1916 and 1926, very little revenue was derived from the O&C
Lands. The disposal policy was a failure, as the rugged, heavily
timbered lands were not attractive for farming or for homesites. As a
result, payments to the O&C Counties and the State of Oregon never
materialized. To assist the O&C Counties, Congress passed the Stanfield
Act of July 13, 1926, 44 Stat. p. 2, 915, which provided for payments
from the general fund of the U.S. Treasury to the O&C Counties. The
payments were in lieu of taxes which the O&C Counties could have
collected had the O&C Lands been privately owned.
The Stanfield Act provided that payments would be reimbursed from
the O&C Counties' share of funds in the previously-established O&C
Land-Grant Fund. To the extent that the Stanfield Act payments exceeded
the O&C Counties' share of the Fund, the excess became a reimbursable
charge against the O&C Counties' share of the Fund. Between 1926 and
1936, the O&C Counties' share of revenues from the O&C Lands was
insufficient to reimburse the United States for its Stanfield Act
payments. There was therefore an ever-increasing reimbursable charge
against the O&C Counties' share of the Fund. The system was not working
to provide the Counties with revenues on a long term basis the way it
was intended. Congress tried again.
In 1937, largely at the urging of the Association of O&C Counties
and Oregon's Congressional delegation, Congress passed the O&C Act, 43
USC Sec. Sec. 1181a et seq. Prior inconsistent legislation was repealed
and the system for distributing revenues from the O&C Lands was
restructured. Once certain debts were satisfied, the O&C Counties were
entitled to a total of 75 percent of all revenues from the O&C Lands.
The remaining 25 percent was to be available for the costs of
administering the sustained-yield program under which the lands were to
be managed by the predecessor agency of the Department of the Interior.
In 1953, the O&C Counties began to receive their full 75 percent
share. After 1953, varying amounts to which the O&C Counties were
otherwise entitled were retained by the Federal government with the
cooperation of the O&C Counties under annual Department of Interior
appropriation acts. After 1957, the O&C Counties received 50 percent of
the revenues. An additional 25 percent was voluntarily relinquished by
the O&C Counties and used for the administration and improvement of the
O&C Lands. The remainder was deposited in the U.S. Treasury. By
``plowing back'' a portion of the revenue to which they were otherwise
entitled, the O&C Counties raised the productivity of the lands. This
plowback was intended as an investment that would return future
dividends to the Counties in the form of a dependable and increased
revenue stream from shared timber receipts. The present value of the
Counties' ``plowback'' investment exceeds $2.5 billion.
Counties received their 50 percent share of revenues and active
management of the O&C Lands continued until the early 1990s, when
timber harvests declined radically due to changing policies,
environmental concerns and litigation. The Counties have, since the
early 1990s been the recipients of ``safety net'' payments under
several temporary federal programs designed to replace lost timber
receipts. The last of the safety net programs expired September 30,
2007. Efforts are being made to reauthorize another temporary safety
net program, but the Counties have been told that, at best, they will
have to return to reliance solely on shared timber receipts within a
few years.
B. Statutory Language and Federal Judicial Decisions.
The purpose of the O&C Act is reflected in the statutory language,
which provides that any of the lands classified as timberlands
``...shall be managed...for permanent forest production, and
the timber thereon shall be sold, cut and removed in conformity
with the principal [sic] of sustained yield for the purpose of
providing a permanent source of timber supply, protecting
watersheds, regulating stream flow, and contributing to the
economic stability of local communities and industries, and
providing recreational facilities....'' 43 USC Sec. 1181a.
(Emphasis added.)
The O&C Act goes on to require that ``timber from said lands in an
amount not less than one-half billion feet board measure, or not less
than the annual sustained-yield capacity when the same has been
determined and declared, shall be sold annually....'' 43 USC
Sec. 1181a. The O&C Act requires that administration of the lands is to
``provide, insofar as practicable, a permanent source of raw materials
for the support of dependent communities and local industries of the
region.'' Id. The O&C Act further warns that ``[d]ue consideration
shall be given to establishing lumbering operations in [administering]
such lands when necessary to protect the economic stability of
dependent communities.'' Id.
The O&C Act has been interpreted many times by the courts as making
timber production the dominant use for the O&C Lands. The other uses
for the lands identified in the O&C Act (protecting watersheds,
regulating stream flows, etc.) are secondary uses, to be achieved
through sustained-yield timber management. The O&C Lands are unlike
other Federal lands, which are managed under multiple-use mandates
where all possible uses are to receive equal consideration in the
planning process. The O&C Act provides for a dominant use, timber
production, not unlike legislation setting aside other lands for
particular purposes such as wilderness, parks, scenic areas or historic
preservation.
A 1990 Ninth Circuit Court of Appeals case states clearly and
unambiguously that the overriding purpose of the O&C Act is to provide
the O&C Counties with revenues through the sale of timber:
``...First, the O&C Act was intended to provide the counties in
which the O&C land was located with the stream of revenue which
had been promised but not delivered by the Chamberlain-Ferris
Revestment Act....The counties had failed to derive appreciable
revenue from the Chamberlain-Ferris Act primarily because the
lands in question were not managed as so to provide a
significant revenue stream; the O&C Act sought to change
this.'' Headwaters, Inc. v. BLM, Medford Dist., 914 F2d 1174,
1183-84 (9th Cir. 1990) (citations omitted, emphasis added).
In Headwaters, the Ninth Circuit made clear that timber production
and harvest was the way Congress intended to achieve the goals of a
sustained revenue stream to the counties and support of local economies
and industries. In responding to the plaintiffs' argument in that case
that the O&C lands should be managed for the discretionary protection
of owl habitat, the court stated that:
``...Nowhere does the legislative history suggest that wildlife
habitat conservation or conservation of old growth forest is a
goal on a par with timber production, or indeed that it is a
goal of the O&C Act at all.'' Headwaters, 914 F2d at 1184.
The Court went on to conclude that ``exempting certain timber resources
from harvesting to serve as wildlife habitat is inconsistent with the
principle of sustained yield.'' Id. (Emphasis added.) Headwaters is not
the only case in which the Ninth Circuit emphasized that the O&C lands
have been dedicated to timber production. See also, O'Neal v. U.S., 814
F2d 1285, 1287 (9th Cir. 1987); Skoko v. Andrus, 638 F2d 1154, 1156
(9th Cir. 1979); United States v. Weyerhaeuser Co., 538 F2d 1363, 1364-
65 (9th Cir. 1976).
The focus of the O&C Act on providing benefits to local communities
is confirmed by historic interpretations given the O&C Act by the BLM
itself. For example, in a 1939 press release, less than two years after
the O&C Act became the management mandate, the BLM's predecessor agency
had a Chief O&C Forester, the equivalent of the BLM State Director, who
described the newly adopted sustained yield forestry program in these
words:
``This assures the continuous production of timber for the
employment of Oregon industries without the danger of
exhausting the timber supply and without the danger of
destroying the tax base of the counties. The General Land
Office administers these lands as a vast estate held in
trust.'' Press Release, March 31, 1939, W. H. Horning, O&C
Chief Forester. (Emphasis added.)
In 1940 the O&C Chief Forester elaborated, saying that ``[a]ll the
lands best suited for the growing of timber will be retained in public
ownership and kept at work producing crops of timber. Continuous
production of timber of commercial quality in the largest possible
amount is the goal.'' W. H. Horning, The O&C Lands and their
Management, an Important Advance in Forest Conservation (1940).
(Emphasis added.)
The dominance of timber production under the O&C Act was preserved
by Congress as recently as 1976, when Congress passed the Federal Land
Policy and Management Act (``FLPMA''), which redefined the management
direction for nearly all lands in the United States under the
jurisdiction of the BLM, with the telling exception of lands managed
under the O&C Act. FLPMA, P.L. 94-579, is a multiple use statute under
which all uses for the land are given equal consideration, and the BLM
has broad discretion in choosing the mix of uses it will adopt for
lands managed under FLPMA. But, Congress specifically preserved the
dominance of timber production on the O&C lands by enacting section
701(b) of FLPMA, which says that ``[n]otwithstanding any provision of
this Act [FLPMA], in the event of conflict with or inconsistency
between this Act and the...[O&C Act and Coos Bay Wagon Road Acts],
insofar as they relate to management of timber resources, and the
disposition of revenues from lands and resources, the latter Acts shall
prevail.''
In 1986, the Interior Solicitor was asked if the BLM had authority
to implement a plan for the protection of spotted owls, prior to that
species being listed under the ESA. The legal opinion differentiated
between lands managed by the BLM pursuant to FLPMA, and lands managed
pursuant to the O&C Act. The Solicitor's opinion describes the
difference as follows:
``The freedom conferred on the Secretary under FLPMA is limited
in one important way on certain federally-owned timberlands in
western Oregon. There, any decision about managing northern
spotted owls must be measured against the dominant use of
timber production....In deciding whether to establish a program
for managing northern spotted owls on O&C timberlands, the
Secretary, then, must decide if it is possible to do so without
creating a conflict with the dominant use there--timber
production. If the Secretary can manage northern spotted owls
and still produce timber on a sustained yield basis in the O&C
timberlands, the O&C Act in no way will preclude him from
making that choice....The converse, of course, also obtains. If
a program for managing northern spotted owls conflicts with
producing timber on a sustained yield basis in O&C timberlands,
the O&C Act will preclude the program's application to that
realty.'' Gale Norton and Constance Harriman, Associate
Solicitors, Memorandum to James Cason, Deputy Assistant
Secretary for Land and Minerals Management (October 28, 1986).
C. Conclusion.
The O&C Lands are clearly very different from any other lands
managed by the Federal government, especially National Forest lands
managed by the Forest Service. The agencies responsible for strategies
for the protection and recovery of ESA listed species should
acknowledge the unique history and purposes for these lands, and devise
strategies that minimize conflicts with the mandates of the O&C Act.
In every case, throughout the country, implementation of the ESA
must take into account the human impacts. Long term preservation of
threatened and endangered species depends on the political willingness
of the citizenry to accommodate the needs of those species, and if the
human price over time is too high and too widespread, the will of the
people to support wildlife protections will diminish.
The Association of O&C Counties thanks Chairman Rahall and all
Members of the Committee for considering our concerns.
______
The following documents submitted for the record have been
retained in the Committee's official files.
List of documents retained in the Committee's official files
American Society of Mammalogists--Document entitled ``Reintroduction
and Conservation of the Mexican Gray Wolf.''
Carroll, Carlos, Ph.D., Klamath Center for Conservation Research--May
27, 2008--USFWS. 2008. Final Recovery Plan for the Northern
Spotted Owl, Strix occidentalis caurina.
Carroll, Carlos and Devin S. Johnson, contributed paper: ``The
Importance of Being Spatial (and Reserved): Assessing Northern
Spotted Owl Habitat Relationship with Hierarchical Bayesian
Models''--Conservation Biology.
Diamond, John, and Family--Statement submitted for the record.
Durkin, Barbara--Letter submitted electronically via email regarding
Cape Wind Draft EIS / MA Audubon.
Haynie, Leigh--Documents submitted electronically via email:
Civil Action Suit--U.S. District Court--Eastern District
Court of Kentucky, Heartwood, Inc. vs. Charles L. Myers.
Article--``All Bats Are in Trouble.''
Hoopa Valley Tribe--Testimony submitted for the record by Congresswoman
Napolitano.
Luce, Dr. Julia Martin--Statement submitted for the record.
Olson, Steve, Association of Zoos and Aquariums--Letter submitted for
the record dated January 2, 2008, addressed to Dr. Benjamin
Tuggle, Duane Shroufe, Bruce Thompson regarding A request for a
moratorium on lethal control and permanent removal (rescind or
suspend SOP13) of Mexican Wolves in the Blue Range Wolf
Recovery Area until expert task force on genetic issues can be
convened to provide guidance to these actions.
Parsons, David R.--Documents submitted for the record:
March 15, 2005--The Rewilding Institute letter addressed
to U.S. Fish and Wildlife Service regarding Comments on Mexican Gray
Wolf Project Five-Year Review.
May 25, 2005--The Rewilding Institute letter addressed to
Terry B. Johnson regarding Comments on Mexican Wold Blue Range
Reintroduction Project Adaptive Management Oversight Committee Proposed
1-year Moratorium on New Releases and Proposed Standard Operating
Procedure 13.
October 10, 2005--Document entitled Mexican Wolf Blue
Range Reintroduction Project Adaptive Management Oversight Committee
Moratorium for Calendar Year 2006 (Standard Operating Procedure 0.D).
Article by Society for Conservation Biology on ``The
Bureaucratically Imperiled Mexican Wolf''--2006.
April 17, 2006--The Rewilding Institute letter addressed
to Dr. John Morgart, FWS.
December 24, 2007--Article from High Country News on
``Last Chance for the Lobo.''
December 26, 2007--The Rewilding Institute letter
addressed to John Slown, FWS.
March 7, 2008--The Rewilding Institute letter addressed
to Dr. Benjamin Tuggle.
May 16, 2008--Letter addressed to Terry B. Johnson from
Elisabeth A. Jannings, etc., regarding Comments on SOP's.
Richardson, Hon. Bill, Governor--Press release--``Governor Richardson
Seeks to Change Protocols for Mexican Wolf Recovery Program''--
dated July 6, 2007.
Schneberger, Laura--Testimony submitted for the record.
Smith, Adrian, Congressman--Documents submitted for the record:
May 6, 2007--Julie MacDonald letter addressed to
Secretary Dirk Kempthorne, DOI.
May 7, 2007--Julie MacDonald letter addressed to
Inspector General Earl Devaney, DOI, plus attachments
Wehrheim, Ed, Catron County Commission--Letter addressed to Dr.
Benjamin Tuggle on April 26, 2007 regarding Notice of Finding
of Imminent Danger, Wolf Durgano F924.
Wehrheim, Ed, Catron County Commission--Letter addressed to the Natural
Resources Committee.