INTRODUCTION
Good afternoon, Chairman Lucas, Congresswoman Musgrave and Members and staff
of the Subcommittee. My name is Jim
Sims. I represent a broad range of interests across the West through two
organizations: the Western Business
Roundtable and the Partnership for the West.
In all, our organizations have active members in the agriculture, coal, hard
rock mining, timber/wood products, oil and gas production, financial services,
construction, legal services, chemicals, manufacturing, engineering services,
transportation, retail service sectors, as well as small business owners and
advocates, , conservation, property rights and recreational access
advocates, state legislators
and county government officials, education
officials, pro-growth coalitions,
Chambers of Commerce (national and local), grassroots
activists and coalitions and think tanks
I greatly appreciate the opportunity to testify here today.
Ladies and gentlemen, I’m here to proclaim that the Endangered Species Act
is dead. Long live the
Endangered Species Act.
THE ESA IS BROKEN
What I mean when I say the Endangered Species Act is dead is this:
ESA is a broken, outdated, anachronistic law that is barely on life
support.
It discourages innovative environmental conservation;
It confiscates private property;
It denies folks their livelihoods;
It costs our economy many billions of dollars per year with little positive
benefit; and
It prevents well-meaning experts at the U.S. Fish & Wildlife Service from
doing the real work of helping species flourish.
And, most important, it fails miserably in
the central mission that Congress intended to achieve with its passage:
recovering species that are in trouble.
Others have and will testify to ESA’s many specific failings.
I will simply point you to one statistic: ESA has, over its 30 year
history, clocked greater than a 99.9 percent failure rate when it comes to
species recovery. Can any of the
Members of the Subcommittee name any other law with such an breathtakingly
consistent record of failure over such a long period of time?
Or, put another way, it’s like that doctor who tells me that my
three-year-old daughter has a potentially life-threatening illness, but then
prescribes a treatment regime that involves hospitalizing her with no active
treatment, no medications, no
therapy and no visitors to her bedside. Would
it be rational for me to stand by and support this “let Nature take its course
and, hopefully, things will work out” approach?
Of course not.
I would like to know if anyone in this room would follow that advice for his
children or family.
ESA does not meet its core mission of recovering species.
The Act does, however, do two things very well:
(1) It transfers control of vast swaths of land in the West from private
landowners and/or states that control the land to unelected federal bureaucrats
and environmental extremist groups.
(2) It provides a very, very good
living for a relatively small group of trial lawyers and professional
environmental extremists who use never-ending lawsuits to warp this well-meaning
law to serve their own narrow political agendas.
BUT THE ESA IS ALSO
HERE TO STAY
Now, I also said at the outset of my remarks, “Long live the Endangered
Species Act.” How do I square that
with such a damning indictment of this law?
What I mean is this: the American
people overwhelmingly support having a law on the books that aims to protect
Endangered Species from extinction. This
Act is not going to be repealed. It
will not be gutted. It will not be
eviscerated. At least, not in our
lifetimes.
At the nexus of these two statements lies the challenge facing Congress:
How do we fix the Act? How do
we modernize it after 30 long years? How
do we improve the Act so that it works both for species and for the people?
I have several suggestions for reform. But
first, let me update the Committee on one specific listing threat that is before
us now in the West: the Greater Sage
Grouse.
UPDATE ON SAGE GROUSE
LISTING CAMPAIGN
Last December, a number of environmental groups filed a petition to list the
Greater Sage Grouse as “endangered” under the ESA.
This petition was one of several in a series of actions undertaken by
these groups – including lawsuits – seeking to add the species to the ESA
list.
A listing of the sage grouse under ESA would have incredibly far reaching and
negative consequences for most of the American West.
Its habitat covers 11 states and more than 110 million acres.
If a warranted listing is granted and the critical habitat process gets
underway, we could see economic damage wrought on the West on the order of
billions of dollars. Virtually no
one in the West would be unaffected: farmers,
ranchers, energy development, small business, recreational access, hunting and
fishing … the list goes on and on.
LACK OF SCIENTIFIC
DATA
One of the problems with this listing process is the lack of scientific data
that can provide a clear picture of what’s going on with sage grouse
populations.
For example, when the “science” contained in the original petition by the
environmental groups was subjected to an independent scientific assessment by
two internationally renowned Ph.D. sage grouse biologists, they found the
following:
“A careful review of this Petition
leads to one simple conclusion: This
Petition is not accurate and is fundamentally flawed in numerous key areas.
Even the proponents of listing the Greater Sage Grouse are unable to
support their position with credible scientific data.
A petition should be viable, reliable and accurate.
There are pockets of truth in the Petition, but they are so intermixed
with un-truths, distorted presentations, and lack of knowledge that they are
difficult to find and separate out.”
In other words, the “science” that effectively convinced the federal
government to formally launch this multi-million-dollar listing review was just
“bad” science. That listing
petition would not even pass muster for publication in a popular science
magazine.
SAGE GROUSE
POPULATIONS ACTUALLY STABILIZING
Fortunately, a much more rigorous study was recently completed by the Western
Association of Fish and Wildlife Agencies, otherwise known as WAFWA.
That study shows that while most states’ sage grouse populations
declined from the mid-1960s until about the mid-1980s
they have since not only stabilized in most areas but, in fact, have
actually increased in some areas.
For example, review these state-by-state findings:
The proportion of active leks remained relatively stable and high throughout
the assessment period, with five-year averages varying from 77 percent to 90
percent between 1965 and 2003 (Table 6.4).
Although lek size class varied over the assessment period no obvious patterns could be documented, further suggesting a relatively stable population (Fig. 6.4).
The average number of leks censused per five-year period increased by 159
percent from 1965 to 2003. The number of active leks censused was similarly
high, ranging from 35 to 114 and increasing by 124 percent over these same
periods.
Greater sage-grouse in
An average of 74 to 319 leks were censused in five-year periods from 1965-69
through 2000-03. From 1965 to 2003, the average number of leks censused in
5-year periods increased by 331 percent. The number of active leks censused was
similarly high, ranging from 69 to 245 and increasing by 255 percent over these
same periods.
The number of leks counted increased and then remained relatively stable
until the late 1990s (Table 6.8). By 2000, monitoring efforts increased
substantially when the average number of leks counted during 2000-03 increased
by 146 percent over the average number of leks counted in 1995-99 (Table 6.8).
Overall, the number of active leks monitored followed the same increasing
pattern as total number of leks (Table 6.8).
By 2000, monitoring efforts increased substantially when the average number
of leks counted during 2000-03 increased by 146 percent over the average number
of leks counted in 1995-99 (Table 6.8). Overall, the number of active leks
monitored followed the same increasing pattern as total number of leks (Table
6.8).
The average number of leks counted per five-year period increased by 42
percent from 1965 to 2003. Over these same five-year periods, effective
monitoring was relatively stable with an average of 14 to 21 active leks
censused (Table 6.9).
However, recent brood survey data from
Similarly, population trends indicated by average and median males per lek
also decreased from 1985-89 to 2000-03 but increased somewhat from 1994 to 2003.
Average and median males per active lek also showed similar trends (Table 6.11).
Monitoring data were only sufficient to examine change in lek size from 1994 to
2003. Over that period, the population did not change significantly (r2 =0.30 P=
0.10) (Fig. 6.24).
Smith (2003) also concluded that
The proportion of active leks remained relatively stable over the assessment
period, ranging from 63 percent to 78 percent from 1965 to 2003 (Table 6.15).
It is noteworthy that this stabilization trend coincides very closely with
the onset of a wide range of sage grouse habitat conservation efforts launched
by both Western states and by industry.
MORE GAPS IN THE
SCIENCE KNOWLEDGE BASE
While there is good news in the findings of the WAFWA report, there are also
many gaps in our scientific knowledge that this report notes – knowledge gaps
that seriously question whether or not we have enough fact-based science to make
an informed decision on this listing. For
example, as noted in WAFWA’s recent analysis:
“… there has been no
definitive range-wide assessment of sage-grouse populations and habitats.” (p.
1-1).
“…we still lack baseline
information across much of the sagebrush biome against which to evaluate
population and habitat changes.” (p. 1-5)
However, because data collected
in the 1940s and 1950s is highly variable (Fig. 6.41) and may have been
collected in a somewhat haphazard fashion, there is no means of assessing the
true magnitude of the population change.
At least 60 percent of states do
not adequately sample harvest numbers (pg 6-7). From 1965 to 1979, most agencies
indicated populations were stable to increasing, in general disagreement with
population data obtained for the WAFWA report (pps. 6-65).
“Although [it has] been argued
that the past distribution of sage-grouse was defined by the presence of
sagebrush-dominated habitats, the quantity of sagebrush in a given habitat type
is not always known and/or consistent.” (p. 6-15).
“Given the uncertainty in
abundance estimates for breeding season populations, expecting any state to
adequately determine size of any population of greater sage-grouse in fall may
not be realistic.” (p. 9-6).
“…the role diseases and
parasites play in population declines across their range is essentially unknown.
This fact, coupled with the emergence of new infectious diseases and the
increasing numbers of small, isolated populations of greater sage-grouse that
may be more vulnerable to population level effects, suggests this field deserves
further study.” (p. 10-3)
“…the number of sage-grouse
in western
“Livestock grazing influences
sagebrush habitats although we do not know the full extent of that influence.”
(p. 13-9)
All state and provincial fish and
wildlife agencies monitor sage-grouse breeding populations annually, but
different approaches are employed. (Table 6.1).
Although most agencies indicated
that they attempted to replicate counts of leks over several weeks (i.e.,
counting individual leks or lek routes >three times), at least two agencies
attempt to complete all counts within a one-week period and one only counts leks
once during this time. In addition, some states provided data indicating leks
were censused at inappropriate times (late February, early to mid-March,
mid-May). Eight (62 percent) agencies indicated gaps in their databases since
initiating monitoring efforts and five (38 percent) reported relatively
continuous databases. Eleven of 13 (85 percent) agencies reported changing
inventory methods over the years.
All states with a hunting season
conducted harvest surveys, but the states employed seven different techniques
for obtaining harvest information.
An evaluation of lek data
indicated that some leks were counted incorrectly, because observers collected
data too early or late in the breeding season, in poor weather and/or later in
the morning.
In any case, leks that are
censused in most states and provinces are probably not a random sample of
available leks and thus data obtained from these leks may be biased.
Although numerous wings are
collected in many states and the wings subsequently classified in
“wing-bees”, numbers may be insufficient to characterize populations,
depending on the number of administrative units used for analysis.
Seven different techniques are
used among the 10 agencies that administer hunting seasons and a variety of
information is obtained from these techniques. This information varies
tremendously among states.
Despite available information,
censusing methods may differ markedly among some agencies and even among years
within agencies (Connelly et al. 2003). Rather than using multiple counts over
several weeks, some agencies have used single counts, or multiple counts in a
one-week period. In other cases, lek counts appeared to have very low priority
and were not done at all in some years. These inconsistencies confound attempts
to make comparisons of population trends among states and provinces.
Because of the problems with lek
count data previously discussed, no method currently available is free from
biases or thought to give a highly accurate assessment of trends.
There may be substantial
variation among states and populations with regard to the definition of a lek. A
biologist in one area might define an expansive group of 100 males as a single
lek, while a biologist from a different area might interpret the same group as
two leks based on their separate concentrations on two adjacent activity
centers.
In addition, the WAFWA report
appears to understate the amount of acreage subject to federal control on oil
and gas development. They map the locations of producing, pending, and abandoned
wells in the five areas of the EPCA report and note that 74percent of wells in
the
STATE-BASED
CONSERVATION PLANS
However, on the positive side of this campaign’s balance sheet, there is
excellent news to report. As a
result of this listing threat, the West has rallied as never before in a unified
campaign to launch sage grouse conservation programs.
It is our view that, in the end, these efforts will be seen as more than
adequate to meet the perceived threats to this species.
The governors of all 11 Western states with sage-grouse habitat are crafting
and implementing comprehensive conservation efforts aimed at preserving this
species. For example:
Of the 11 states and two Canadian Provinces with sage-grouse populations,
nine have completed sage-grouse conservation plans.
There are 23 LWGs scheduled to have completed conservation plans by the
summer of 2004. Range-wide coverage of conservation plans are expected by winter
2008. In seven states, conservation efforts have begun and are taking place
whether or not a statewide plan is complete: WA, UT, OR, NV, MT, ID and CA. In
addition, federal land managers in
The breadth and depth of state and local conservation plans is truly
impressive. A broad-cross section of these efforts can be found in the Western
Governors’ Association’s (WGA) recent report to USFWS, entitled:
“Conserving the Greater Sage Grouse — A Compilation of Efforts Underway on
State, Tribal, Provincial and Private Lands.”
PRIVATE SECTOR
CONSERVATION EFFORTS
Landowners and others in the private sector are engaging in multi-party
efforts on sage-grouse conservation across the West. Many of these are detailed
in the WGA’s recent report “Conserving the Greater Sage-Grouse.”
In addition:
Energy development companies are working range-wide to implement conservation
measures both on a voluntary basis and in conjunction with federal land
managers. A detailed assessment of these efforts, due to be submitted to USFWS
in August 2004, will document a wide array of conservation efforts.
In recent years, Resource Management Plans developed as part of energy
development on federal lands are increasingly focused on factors such as noise
restrictions near leks, as well as noxious weed management, outreach and
education, recreational disturbance of sage-grouse, etc. These plans provide for
lek surveying and clearances, as well as conservation efforts including lek
avoidance, seasonal prohibitions and project “visiting hours” to limit or
eliminate disturbance to the bird.
FEDERAL LAND MANAGER
CONSERVATION EFFORTS
Federal land managers are also devising strong conservation efforts.
The U.S. Department of Agriculture’s private-lands conservation programs
provide many opportunities for accomplishing the goals developed for Sage-grouse
conservation. The programs provide incentives for private landowners to develop
or set aside lands that can be utilized to create or enhance Sage-grouse
habitat. These programs include the Grassland Reserve Program (GRP),
Conservation Reserve Program (CRP), Wildlife Habitat Incentives Program (WHIP),
Environmental Quality Incentives Program (EQIP), Wetlands Reserve Program (WRP),
and the Farmland Protection Program (FPP). In the West, CRP lands are locally
important to sage-grouse and Sharp-Tailed Grouse conservation.
FUNDING EXISTS FOR
CONSERVATION EFFORTS
Funding for conservation efforts also exists from a variety of sources to
implement the conservation efforts of the state and federal governments.
For example, the BLM maintains a lengthy document on its sage-grouse web
pages entitled “Funding Availability for Partners in Sage Grouse Conservation
Efforts.” (see http://www.blm.gov/nhp/spotlight/sage_grouse/Sage_Grouse_Funding_Availability_for_Partners.pdf).
This describes just some of the funding that may be available to protect
sage-grouse from such sources as FWS, BLM, the Department of Agriculture, the
Forest Service, Department of Defense, Department of Energy, State Fish and Game
Agencies, and nongovernmental organizations.
In addition to partnering with government at various levels, Westerners
including farmers, ranchers, miners, drillers and others who live and work on
the land continue to fund ongoing research as well as conservation efforts.
Without them, many of the studies, lek rehabilitation projects, lek mapping,
disease control programs and other efforts critical to the sustainability of the
sage grouse would end, imperiling the sage grouse and losing an opportunity to
know vastly more about this hallmark of the West and the sagebrush sea it
inhabits.
We believe that when the Fish & Wildlife Service takes into account all
that is being done – or is planned for the future – in sage grouse
conservation efforts, they will agree with us that the best outcome for the bird
is to let state and local leaders continue leading conservation plans, not
affect a federal takeover of the Endangered Species Act.
ESA REFORMS:
SOUND SCIENCE
This listing struggle helps to highlight several areas where the Endangered Species Act could be modernized, updated and improved.
For example, why don’t we
require that sound, peer-reviewed science be used to make listing decisions
rather than simply the “best available science?”
Unlike laws such as the Safe Drinking Water Act, the Marine Mammal
Protection Act, and a host of laws that affect the Food and Drug Administration,
the Department of Education, and the Department of Labor, and the Department of
Commerce (to name a few), the ESA currently has no peer review requirement.
The absence of peer review explains the overwhelming record of inaccurate
data - and data
errors - under the ESA. Peer review is a standard scientific
safeguard, but has somehow never been integrated into
A reform measure passed with bipartisan support in the House Resources
Committee last week, sponsored by Rep. Greg Walden, would be a step in the right
direction.
What would the practical outcome of this reform be?
For one, it is highly likely that Fish and Wildlife would not have
decided to go forward with its listing Greater Sage Grouse review based on the
environmentalists’ listing petition.
For another, it is likely that the “mouse formally known as Preble’s”
would not have been mistakenly listed, as it obviously was.
The so-called “Preble’s Meadow Jumping Mouse’” was a creature of
fiction invented by a biologist in 1954. This
biologist has since recanted and agreed there “Preble’s” does not exist.
It is genetically identical to a more common mouse than likely ranges
throughout two-thirds of the North American continent.
The Coloradans for Water Conservation and Development and the State of
ESA REFORMS:
STEWARDSHIP INCENTIVES
What about updating the Act to incentive stewardship on private lands, rather
than relying on the highly punitive approach of the ESA?
Well, in the case of the sage grouse, we would likely see a whole lot of
interest by private landowners in preserving any sage grouse populations and
grouse habitat on their lands both to: (a) partake in the incentives program;
and (2) to help avoid the failure of an eventual ESA listing.
As it stands now, how do you think that many private landowners would react
if they found out they had sage grouse on their lands as a potential ESA listing
was being considered? Do you think
they would make an immediate call to their local Fish & Wildlife Service
office to report these sage grouse, or do you think they would be inclined to
shoot, shovel and shut up? I can
tell you that the latter is what the law now encourages.
ESA REFORMS:
CRITICAL HABITAT DESIGNATION REFORM
What if we added provisions to the Act that stretched out the timeframe
between a warranted listing of a species and the onset of the critical habitat
designation? It would give state and
local interests more time to get to the table with a broad range of stakeholders
and work out effective conservation programs.
That would help avoid the need for the failed critical habitat process,
and would result in a much better outcome for the stressed species and its human
neighbors.
ESA REFORMS:
A RENEWED FOCUS ON SPECIES RECOVERY
What is we added provisions to the Act that placed the focus more on species
recovery rather than on the bureaucratic straightjacket of the critical habitat
process? For one, we would be
replacing a failed strategy – critical habitat – with one – locally driven
conservation efforts – that has proven successful.
In the case of the sage grouse, we could be spending our time working to
develop region-wide conservation plans that worked rather than spinning our
wheels in a defensive campaign to head off a federal takeover of those plans.
Just how bad is the current Act with regard to species recovery.
Look at the facts:
According
to the USFWS, there are currently 1265 species in the United States that are
listed under the ESA as threatened or endangered.
An additional 39 species were listed and de-listed over the last
30-years, for a grand total of 1304 species in the Act’s history.
Only 16 of these 1304 species have been recovered, according to USFWS data on
de-listed
species. (See
original data here: http://ecos.fws.gov/tess_public/TESSWebpageDelisted?listings=0).
In the 30 years since ESA was enacted, this law has achieved a .01 percent
rate of success. USFWS statistics
showing that only 30 percent of species are "stable" and only 9
percent are "improving" does not brighten the picture.
Furthermore, numerous qualified studies assert that none of the species
listed by the USFWS to have been “recovered” in the
For example, the National Wilderness Institute, in a 1997 report,
“Conservation Under the Endangered Species Act, A Promise Broken,” (see:
http://resourcescommittee.house.gov/issues/more/esa/nwirpt_1997.pdf)
states that “there is no case which required the ESA to bring about the
improvement of a species” and in at least four of the claimed recovery cases
there was “little demonstrable change in the species’ condition attributable
to anything other than data error.”
In short, the ESA has failed to recover species, which was the intent of the
law. Clearly, if our goal is to
“save” species, then subjecting it to this broken law is not the way to go.
ESA REFORMS:
GREATER STATE AND LOCAL INPUT
What is we gave states a chance to play more active roles in state and
local-based innovation and collaboration that recover species?
Again, we would have a system where state and local leaders – those
closest to the land, the species and its habitat – would be running more
effective conservation efforts than federal bureaucrats who answered to bosses
thousands of miles away.
ESA
REFORMS: REQUIRING SPECIES RECOVERY
GOALS
What if we required that species recovery goals be set prior to a species
being listed? That would seem to
make good sense, especially since the primary goal of a listing is to help a
species recover. If stakeholders
don’t know what goal to shoot for species recovery efforts, how can they gauge
success or even be encouraged to try? We
end up with a situation like we have in
I’m amazed that the State of
SUMMARY
Of course, I would submit that those who blindly pay homage to this Act
really don’t want species to be recovered and de-listed.
If that were the case, they would lose that which they most covet – the
heavy hammer of critical habitat designation.
Finally, in conclusion, let me say this:
the Endangered Species Act can be fixed.
It can be modernized. It can
be brought up-to-date with the 21st Century.
It can be made to focus on actual recovery of troubled species, while
also protecting private property rights and local economies.
But achieving success in this effort will require bipartisan agreement and
bipartisan support. We were very
pleased to see the bipartisan consensus that emerged in last week’s actions by
House Resources Committee, which was led in large measure by the Committee’s
Chair, U.S. Rep. Richard Pombo (R-CA). We
certainly hope that continues. And,
we look forward to working closely with you and your colleagues in this historic
reform effort.
Thank you very much.