Statement of Russell George, Executive Director,

Colorado Department of Natural Resources

Before the

U.S. House of Representatives, Committee on Agriculture, 

Subcommittee on Conservation, Credit, 

Rural Development, and Research  

Field Hearing, Weld County Courthouse

Monday, July 26, 2004

Greeley , Colorado    

            Chairman Lucas, Congresswoman Musgrave and committee members, it is an honor to join you today to speak about something that increasingly demands our attention and our time – the Endangered Species Act.  Colorado , and my department in particular, have a unique and interesting story to tell about our encounters with the Act and Colorado ’s effort to deal with endangered species in a proactive way.   We hope to shed some light on the Act, its implementation, its shortcomings, and ways we believe it can be improved to accomplish the end goal of the Act, which is species recovery.  

            In Colorado we have taken a new and different approach.  Early in his first term, Governor Bill Owens determined that the numerous complaints he had received in his office regarding endangered species issues had very little to do with the species themselves and almost everything to do with the overt restrictions and regulatory straightjacket of the Endangered Species Act.  Species conservation is an issue upon which we can all agree, and it serves as the underpinning of the Act – it is how we get to that ultimate end that is the issue.  In aiming toward that end, we have asked the essential question: What does it take to recover threatened and endangered species, and what is the most effective and expeditious way to affect that recovery?  

            Governor Owens took a look at the Endangered Species Act and saw three fatal flaws:  

1)      The Act and the listing procedure that goes along with it were doing an abysmal job of recovering species – of the 1300 species listed, only 30 have been recovered, or otherwise removed from the list.  

2)      The participation of the states, while acknowledged in the Act, receives very little recognition or encouragement from the federal government, in spite of the fact that states have always been recognized as having primary jurisdiction over species and species recovery.   The experience and intuition of state wildlife managers and biologists, who are closest to the situation, has largely been ignored.  

3)      Species can be recovered so much easier without listing.  Listing has more of a chilling effect on the participation of landowners and those closest to the ground, and our efforts should be directed toward encouraging private and individual participation in species recovery, not driving it away.  

The United States Fish and Wildlife Service (USFWS), often cited as the villain in endangered species matters, should be commended for doing their best under the worst of circumstances.  Working on a limited budget, the USFWS is faced with the task of constantly reprioritizing.  But its focus is in the wrong place.  At a recent seminar attended by my staff, we were surprised to learn that species recovery was the USFWS’ dead last priority.  To use the worn out phrase, we ask: ”Is something wrong with this picture?”  

Yet such a circumstance becomes more understandable when you see the USFWS utterly barraged by litigants demanding listing of any number of species, and using the courts to affect their purpose.  The USFWS is in such a mad scramble to keep species off the list at the front end that recovery is all but forgotten on the back end.  And now its procedure for managing candidate species has been legally challenged and overruled.  The USFWS is in a no-win situation from the start, and the only winners are the agenda-driven litigants who use the Endangered Species Act as the strongest of the federal land-use restriction tools.  The losers, sadly, are the species.   

The participation of states is welcomed throughout Section 6 of the Act, but the Section is largely ignored in practice.  The USFWS pointed Colorado toward using that part of the law when Colorado sought to augment its reintroduced lynx population in 2002.  It’s good, it encourages proactive partnerships between states and the federal government, and it’s where the future of endangered species recovery lies.  

But, as our experiences in Colorado prove, government agencies can’t recover species without significant partnerships with private land owners.    Colorado has encountered tremendous success enlisting the participation of landowners who recognize the value in promoting species and enhancing recovery.  Ranchers and farmers who are closest to the land recognize the value in preserving and maintaining habitat wherever and whenever they can, and sometimes that habitat is nothing more than plowed ground awaiting planting. Listing a species does nothing to encourage private conservation, and in fact more often than not, hinders private conservation actions.  Fostering and nurturing these public/private partnerships is an essential element to any effective recovery program.  

Keeping these issues in mind, I would like to walk you through some of the species-specific experiences we have had in Colorado .   

Black-tailed Prairie Dog  

In 2000, the National Wildlife Federation (NWF) filed a petition with the USFWS to list the black-tailed prairie dog as a threatened species.  In their petition, the NWF cited 90,000 acres of occupied prairie-dog habitat in the entirety of eastern Colorado .  Many of us cynically thought that the acreage was prairie dog habitat in the eastern half of one county, yet the NWF initially prevailed with the USFWS and received a “warranted but precluded” designation for the species, meaning that the USFWS found that the species was warranted for listing but that other species took higher priority.   

Wildlife mangers were shocked and appalled that a creature known to be so prolific throughout the American prairie could even be considered for listing.  But, as we dug through our records, we realized that little had been done to inventory the occupied habitat of the species, and that the NWF was, in fact, using the “best available science,” which is the standard used by the USFWS in considering a listing under the Endangered Species Act.  Colorado immediately put together a ground inventory of occupied habitat and found 217,000 occupied acres, followed the next year by an aerial inventory which determined that Colorado had 636,000 of occupied black-tailed prairie dog habitat.  Joining forces with ten other states, the multi-state grasslands working group now has recommended to the USFWS that the black-tailed prairie dog not be listed.  The USFWS has yet to make a determination on removing the species from its listing as “warranted but precluded,” and expects to do so in August, 2004.   

The remaining aggravation in this saga is simply that the NWF cannot let go of their initial position.  It is still trying to disprove our data gathered from the aerial survey by the Colorado Division of Wildlife.  Incidents like this make it apparent that some radical environmental groups prefer to use the Act as a way to control land use policies, rather than to actually recover species in real trouble.  

Preble’s Meadow Jumping Mouse  

This particular mouse finds its habitat in riparian zones in numerous counties on the Front Range of Colorado, stretching from Fort Collins on the north to Colorado Springs on the south.  The USFWS listed the species in 1998 as a threatened species based primarily on the research of the biologist who designated the mouse as a separate subspecies, based on the testing of three samples.  

In 2003, the State of Wyoming and the USFWS jointly contracted with Dr. Rob Ramey, a biologist from the Denver Museum of Nature and Science, to subject the Preble’s to genetic testing.  Dr. Ramey’s study, released at the end of last year, concluded that the Preble’s was in fact part of the “Bear Lodge” jumping mouse subspecies found stretching from South Dakota through northwestern Wyoming and into Montana . Furthermore, additional trapping data showed there was a fourfold increase in the distribution of the mouse since its listing in 1998.  Wyoming and a private group of citizens in Colorado proceeded with a delisting petition of the mouse in 2003.   

Colorado supports the delisting of the mouse, based on the compelling results of the genetics study and additional trapping data.  We assisted the delisting petitioners by setting in place a peer review panel, whose review and results are now in the hands of the USFWS for its consideration, in addition to all of the rest of the delisting data.  Colorado set up the peer review panel in order to have the most defensible review possible, believing science should be analyzed not on a pre-determined outcome or a particular point of view, but with a focus on the scientific method, correct processes, proper hypothesis, and defensible conclusions as the foundation of the delisting action.  

Colorado has included additional information in its submission to the USFWS demonstrating that Colorado state, county, and municipal governments have put a great deal of infrastructure, easements, open space, and some moderate local regulation in place to accommodate the Preble’s Mouse independent of federal oversight.    

Our lesson from the Preble’s episode takes us back to the ESA’s scientific definition – “the best scientific and commercial data available.”  In this case, what was available at the time of listing carried the day, but Colorado landowners, businesses, and taxpayers have spent countless millions of dollars to accommodate this mouse based on what now appears to be, at best, bad data.  In fact, the biologist who designated the Preble’s as a separate subspecies in 1954 recently recanted his findings after reviewing the Dr. Ramey’s genetics study. 

Black Footed Ferret  

The Black Footed Ferret was considered all but extinct in the late 1970’s when a population of the species was discovered on a ranch in Meeteetse , Wyoming .  Ferrets were trapped and moved to a breeding facility in 1985, and the USFWS initiated a captive breeding program in 1987.  Between 1987 and 1997, captive breeding efforts have produced approximately 2,200 ferrets, and much has been learned about ferret behavior, nutrition, disease and reproduction.  In 1996, the USFWS put together a recovery team, which has lead to an active reintroduction program starting in 1999.  

Colorado has three reintroduction sites in the northwestern part of the state located predominantly on Bureau of Land Management lands.  Recovery goals were set early on in the process at 1,500 ferrets established in the wild by the year 2010.  

The black-footed ferret recovery program is a model for cooperation between the USFWS and the states.  While it is too early to determine the success of reintroduction efforts, it is clear this is a model program of intergovernmental cooperation and has brought the species back from near-extinction.  Future delisting could ultimately give the USFWS a model of how the Act can work to effect species recovery based on cooperation with states, and the early establishment of recovery goals.  

Canada Lynx  

The introduction of the Canada Lynx in Colorado is one of Colorado ’s great endangered species success stories.  

  Colorado initially started reintroducing lynx brought down from Canada in 1999 and 2000, before the species was listed as threatened under the ESA. In those two years, 55 lynx were released.  Despite some early mortality in the first years, Colorado has stepped up its reintroduction efforts, putting 71 additional animals in the wild in 2003 and 2004.  The species have responded dramatically, having bred in 2003 and 2004, producing 16 and 30 kittens respectively.  Colorado biologists have seen exciting trends in the breeding, noting females from both early and recent releases who have given birth to kittens, and noting that some females have given birth in both years consecutively.  The population is settling into its range now, and biologists eagerly anticipate lynx recruitment (reproduction in the new generation).   

Colorado ’s experience with the Canada Lynx is a success story because of these successful reintroduction efforts  Colorado was able to craft a state-directed conservation agreement under Section 6 of the ESA. This agreement allowed the state to proceed with reintroduction while recognizing and mitigating the difficulties faced by individuals and businesses whose operations and livelihoods were placed in question by the potential regulatory burden that accompanied the presence and continued reintroduction of a threatened species.  The agreement allows for Colorado to proceed with its reintroduction efforts and provides for conservation measures to be followed by ranchers and small game hunters.  The agreement also allows for moderate “incidental take” coverage for ranchers who may accidentally harm or kill a lynx while protecting their livestock, and to small game hunters who may mistake a lynx for a bobcat.  Colorado meets with ranchers and ski industry officials as well to assure communication between the state and those who interface with the species most often on the ground.   

However, as much as Colorado has enjoyed success with its Canada lynx reintroduction program, the federal government has yet to provide the state with concrete goals for the species recovery.  This example illustrates the challenge and the opportunity at hand: states are ready, willing, and—in some cases—moving ahead of the federal government to recover species.  However, the ESA does not give the states and their partners a roadmap to achieve species recovery and delisting.  Colorado ’s lynx recovery program has been in place for 5 years, and the state has yet to receive a quantitative measure for what recovery means.  

Mountain Plover     

The Mountain Plover stands as one of the great species conservation success stories in Colorado , based on an unprecedented undertaking by numerous partners to develop sound, defensible data.  The decision by the USFWS not to list the species developed out of the hard work of a public/private conservation alliance consisting of the Colorado Division of Wildlife, the Colorado Farm Bureau, the Rocky Mountain Bird Observatory (RMBO), Prairie Partners, the Nature Conservancy, the USFWS, and the U.S. Forest Service.  These parties joined together with a host of private agricultural landowners to put together a memorandum of understanding to allow the voluntary participation of landowners to affect a comprehensive conservation effort for the species.  

The conservation effort was created with landowner incentives in mind. Projects include our centerpiece effort wherein landowners can call an 800 number to request the RMBO to come out and flag plover nests on agricultural ground before plowing, education seminars (and a video) made available throughout Colorado’s eastern plains to bring landowners up to speed on best management practices to enhance plover conservation, intensive research on plover nesting habits, and research into preferred habitat by the plover (the birds seem to prefer ground which has been burned over, plowed or grazed down first before nesting).   

Due to this conservation effort, biologists are now observing more birds that we are now counting because we have the cooperation of the private landowners and access to their lands to do the bird counts. The occupied range of nesting plovers in Colorado is far more extensive than previously thought, and we have now learned that the rate of fledging success on cultivated fields is to a small degree higher than on native short grass prairie.    

The combined efforts of landowner volunteers, non-profit organizations, and state and local government in partnership with the federal government created the right mixture of hard science, conservation techniques, and education to make voluntary species conservation occur in such a comprehensive manner that a listing was precluded.  It is a classic case where conservation occurs precisely because there is no overhanging regulation by the ESA. In fact, Secretary of the Interior, Gale Norton, has stated that the plover model is one that should be used on all species of concern.  Once again, landowners recognized the value in effecting conservation ahead of any ESA regulation at all.  

Native Colorado River Fish  

Native fish in the Upper Colorado River have been subject to an extensive multi-state recovery effort since the late 1980s.  Colorado , Utah , Wyoming , and New Mexico are putting vast amounts of time, effort and money toward this elaborate program, which funds infrastructure, water allocation, stocking, monitoring, and a full program staff to effect recovery.  Intricate flow recommendations have been implemented through coordinated reservoir operation and water shortages during drought have been shared equitably among all users.   

What this program lacked until 2002 was recovery goals to serve as a roadmap.  Colorado advocated strongly for these goals, and now that we have goals by which we can measure program success, we now see that we’re making headway toward recovery of the endangered fish species.    

One component of our multi-state fish recovery program to which Colorado is a great contributor is the ability to breed fish species in our native species hatchery in Alamosa , Colorado .  Not only is the hatchery contributing native fish to be released in the Upper Colorado River, but the hatchery also grows fungus-free boreal toads (a candidate species) and a variety of state-listed minnows from Colorado’s eastern plains.  The hatchery is another example of how Colorado is making the investment to promote species recovery with homegrown solutions, thereby precluding preemption by the Endangered Species Act.  

The Upper Colorado Endangered Fish Recovery Program has worked remarkable success.  Based on the aforementioned recovery goals, one of the species (the humpback chub) will likely be considered for downlisting by 2007.  The species are slowly being recovered, all the while allowing for over 750 water diversion/depletion projects to move forward without a single lawsuit.   

The Endangered Species Act – Suggested Improvements  

Colorado has observed the Endangered Species Act from many different angles.  We are cognizant of the numerous proposals before Congress, and those circulated among interest groups and trade organizations.  From our perspective, there are two core areas where the Act could be improved.  

First, the statute should require the formulation and publication of recovery goals to accompany any species listing proposal.  Our experience with the Upper Colorado Endangered Fish Recovery Program, where it took fifteen years to develop recovery goals, and the Canadian lynx—where our recovery program has been in place for five years, yet we still don’t have recovery goals—tells us that goals should be published right up front.  This has the effect of putting the roadmap to recovery in place should a listing occur, and provides an additional benefit to endangered species in promoting their recovery first and foremost after a listing decision.  

Secondly, we urge Congress to amend the standard of “best available scientific and commercial information” to require that the science be peer-reviewed.  This will lead to much better decisions than what ultimately put the Preble’s Meadow Jumping Mouse on the list and what nearly caused a listing of the prolific Black-tailed Prairie Dog.      

Species recovery and conservation should be the focus and goal - something to be advocated for on an aggressive timeline, funded, and actively pursued as the end goal.  It cannot be just an ancillary benefit that may or may not occur.  

Focusing on recovery is not merely a way to get people out from under the federal regulatory thumb, or just a means for recovering endangered species so people can continue to live and work and raise a family in an area largely owned by the federal government.  Rather, at the end of the day, it is simply the right thing to do for the environment.  After all, recovering endangered species was, and is, the goal of the Endangered Species Act - an objective that Colorado is achieving through strong, creative and common-sense action.