STATEMENT OF

THE AMERICAN FARM BUREAU FEDERATION

TO THE

SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE

REGARDING

HEARING ON LISTING AND DE-LISTING SPECIES

UNDER THE ENDANGERED SPECIES ACT

SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE

 

May 9, 2001

 

The American Farm Bureau Federation (AFBF), the nation’s largest general farm organization representing the interests of over five5 million member families, submits this statement for the hearing record.

 

America’s farmers and ranchers own and use much of the land and waters that are inhabited by endangered and threatened species.  They feel the impacts of listing species under the Endangered Species Act (ESA) every day.

 

The overriding purpose of the Endangered Species Act is the recovery of species on the brink of extinction.  This is to be accomplished by placing them on a list of endangered or threatened species, where they are to be protected from adverse activity until they have achieved “recovery” as determined by a recovery team. The ultimate goal of the ESA is removal from the lists.

 

It has not worked that way in practice, however.  Species that are lawfully hunted or fished in other parts of the continent or country are listed under the ESA, while species that are truly on the brink of extinction are waiting.  Courts, not the agencies themselves, set the agenda for  whichfor which species get listed.  And once listed, species rarely are removed from the list, even though they have met stated recovery goals. 

 

We have several concerns with the listing/delisting process, and offer some suggestions as to how the ESA might be amended to return to its original intent.

 

1.  The Act Should Require Minimum Scientific Standards Necessary to Support Listing and Other Decisions Affecting Listed Species.

 

The most serious deficiency with the ESA listing process is that it does not contain any any minimum  scientificminimum scientific standards to list a species. 

 

The most celebrated case involving an endangered species remains the snail darter.  This small fish halted a multi-billion dollar water project in Tennessee.  A lawsuit over this human-species conflict went to the Supreme Court, and remains the only substantive case on the Endangered Species Act to have been decided inby that forum.  Following the decision in Tennessee Valley Authority v. Hill, Congress passed a law exempting the Tellico Dam project from the strictures of the Act.

 

A few months later, several more areas were found to be inhabited with snail darters.  The species was soon thereafter downlisted from "endangered" to "threatened."  Millions of taxpayer dollars were wasted because of incomplete scientific information.

 

Recently, five snails located in the Snake River in Idaho were listed as either endangered or threatened, despite the fact that less than one percent of their possible habitat had ever been surveyed.  The decision to list was made even though only approximately 300 square feet of the entire Snake River had ever been sampled for the presence of these species.  That is not the use of sound science in the application of the Endangered Species Act.

 

Endangered Species Act decisions currently are required to be made on the basis of "the best scientific and commercial data available."  The "best" scientific data available might be as little as one monograph on the subject by a single masters degree candidate.

 

With affected species occupying greater habitat areas and affecting more basic, pre-existing human activities than ever before, there is too much at stake to make such decisions on inadequate scientific evidence.  Before basic human patterns are disrupted, jobs are lost and communities are stripped of economic vitality, we submit that the Endangered Species Act decisions

must to be based on more sound, scientific certainty than is currently required.  

 

 The current "best scientific data available" standard is really no standard at all.  It provides no incentive for agencies involved in listing decisions to obtain accurate and up-to date information necessary to make an informed decision.  All too often, decisions are made on outdated, insufficient or misinformed data.  Unverified hypotheses or assumptions made by one researcher often become truth for the next researcher who does nothing more than glance through the earlier work.

 

The problem with this non-standard can be illustrated by applying peer review principles to it.  The only function of a peer review team would be to determine whether the information used was the “best available,” not whether it is sufficient to support listing the species. 

 

 Often, the correct scientific data is easily obtainable through a little effort.  For example, in the case of the listing of the five snails in Idaho, the Idaho Farm Bureau Federation hired an independent biologist to check the Fish and Wildlife Service (FWS) data.  With minimum effort, he readily discovered that these snails exist in far greater numbers and in a far greater number of places than determined by the government. Such information, however, was largely ignored in the final decision. 

 

We are troubled that private landowners are being required to prove that government data is incorrect.  Private landowners do not have the resources that are available to the government; and even in the face of contradictory evidence, there is no guarantee that the government will accept it.  We submit that precious time and resources will be saved if the listing agency or the agency making the decision is required to do it right in the first place.

 

Furthermore, requiring an affected private person to disprove the government's data places the ultimate burden of proof for Endangered Species Act decisions on the private party.  Instead, the burden of proving that a species deserves to be listed or that certain management prohibitions are appropriate should be on the government agency proposing the action.  After all, Tthe Act requires the FWS to make decisions whether or not to list certain species, and those decisions should at the very least be based on sound science.  The agency has greater resources available to it, is in a better position to obtain required data, and should be required to justify its actions.

 

The term "best scientific and commercial data available" must be defined to incorporate minimum scientific standards and procedures necessary to sustain a decision that a species be listed or that some other action be taken. This amendment is necessary to ensure that decisions affecting entire regions of the country are not being made on outdated information or on bare assumptions that could easily be disproved.  Further, there must be some unbiased, objective review p prior to decision to ensure that the proffered data meets minimum scientific standstandards.s


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To accomplish this, we suggest the creation of a truly independent Scientific Advisory Panel to peer review ESA decisions prior to their proposals to ensure that there is sufficient scientific data to support the conclusion.  We envision the Scientific Advisory Panel to have much the same role as the Scientific Advisory Panel within EPA, except that the panel would have authority to veto any proposal that did not meet minimum scientific standards. 

 

2. The Endangered Species Act Must Eliminate Application to  "Sub-Species" and "Distinct Populations."

 

One of the reasons leading to the enactment of the Endangered Species Act was the increasing number of species that were cited as becoming extinct each year.  The Act was passed to try to reverse that trend.  The stated trade-off for restricting land uses, stifling the economy, causing the loss of jobs, and adding millions of dollars of regulatory costs as the cost of doing business is to keep species from becoming extinct.

 

Were the ESA limited to that goal, it would be much easier to accept by those who are directly affected by its harsh restrictions.  By extending the law to "subspecies" and "distinct populations", however, the Act goes far beyond what the public is being told is the goal of the law.  We submit that the definition of "species" should be amended to delete protection to sub-species and distinct populations. 

 

Taxonomic definition to the "species" level is sufficient to separate different plants, animals and fish that should be protected under the Act.  Further classification into sub-species often adds nothing to the taxonomic definition of a species.  So-called sub-species are often indistinguishable from others of the species, and there is no practical reason for such sub-classifications to be protected separately.  Classification at the species level is what gives the organism its identity--further sub-classifications add little or nothing. 

 

If protection down to the sub-species level bears little relationship to whether a species becomes extinct, protection based on "distinct populations" has absolutely no relationship to the survival of the species.  As with sub-classifications of species, a particular plant, animal or fish might be thriving as a whole, but the Act would allow that species to be listed as "endangered" or "threatened" if it is not thriving in one particular area of its historical range.  To permit a listing on that basis where the species is thriving elsewhere flies in the face of everything that the Act is supposed to represent.  Furthermore, this situation siphons scarce resources from species that really are in danger of extinction to protect distinct populations of more glamorous species.  TIt almost sounds as if this sort of a listing is designed towill ultimately turn back the clock and remove people from the land and return it to the flora and fauna that might have lived there many years ago.

 

The clearest and most visible example of this "preservationist" strategy is the status of the so-called "gray wolf" under the Act.  From a biological standpoint, all experts agree that the species of "gray wolf" is in no danger of becoming extinct or endangered.  There are approximately 60,000 of these animals in Canada with an additional 8,000 in Alaska and 2,000 more in Minnesota, Wisconsin and Michigan.  Based on the supposed goal of the Act, there is no conceivable way that this animal would or should be listed under the Act. 

 

Using the "distinct population" idea, however, the gray wolf is listed as "threatened" in Minnesota and "endangered" in the other 47 lower- tier states.  An introduction of wolves into Yellowstone Park and environmentalists touched off one of the morest bitter controversies surrounding the Act.  The federal government has conservatively estimated that it has spent nearly $6.5 million on the introduction project, which represents about one-half the total estimated cost.  Yet, the whole mess was unnecessary.

 

Government officials state that introduction is necessary to "recover" the species.  Yet the species is fully "recovered" in large numbers in Canada and Alaska, and a healthy population lives in northern Minnesota. 

 

Aside from having no rational basis for inclusion in the Act, the "distinct population" criterion is being used in a manner that was not intended by the Act.  "Distinct populations" are not being used to decide whether a proposed project should be begun in an area.  As with the wolf introduction example, or in the example of specifying different runs of salmon as separated protectable species, these activities affect the basic fabric of people's lives.  Instead of proposed, future activities, these actions affect the way people live and make their livelihoods.  It is this very basic difference between intention and present reality that demands that the structure, functions and priorities of the Act be re-thought.

 

So much agency time, attention and money is devoted to listing and "recovering" these kinds of "distinct populations" like the gray wolf that species truly in need of federal assistance are left wanting. We submit that both the agricultural community and the truly endangered species would benefit from a return to the central purpose of protecting those species which are in danger of becoming extinct.  We submit that the only way this can be accomplished is if the Act focuses on plants and animals at the species level.  Protection for sub-species and "distinct populations" should be removed from the Act.

 

There are a number of ways in which the “distinct population” concept is being abused by the agency.

 

a.      Species that are so plentiful that they are even hunted or fished in Canada or Mexico are listed in the United States. thereThere isare an ample number of gray wolves in Canada and Alaska that they are in no danger of becoming extinct.  They are lawfully hunted.  Likewise, there isare a sufficient number of grizzly bears in Canada that they are not in danger of extinction.  Canada lynx are plentiful in Canada, yet on the threatened list in the United States. 

b.     Atlantic salmon and many Pacific salmon are raised in captivity where they are fished and eaten, yet they are on the endangered species list.  Atlantic salmon raised in fish hatcheries are the same fish as the salmon occurring in the wild.  They have interbred for nearly 150 years and have been used to re-stock rivers and streams.  They return to the river of origin to spawn, just  like their naturally occurring brothers.  Yet the hatchery- raised fish are not counted as part of the salmon population for ESA listing purposes.  The same is true for Pacific salmon, where hatchery fish, whose only distinguishing characteristic is a hatchery clipped fin, are actually clubbed to death to prevent excess spawning.  Both Atlantic and Pacific salmon are served in restaurants.

 

All of these listings have caused severe disruption to people residing in the affected areas.  These species should never have been listed in the first place.

 

3.  3. The Act Must Differentiate and Distinguish Between Species Listed as Endangered and Species Listed as Threatened.

 

When Congress first enacted the ESA, it created two classifications of listed species -- those that were "endangered" and those that were "threatened."  While the Act continues these distinctions, the Act is also being applied in such a way that there is no practical difference between an "endangered" species and a "threatened" species.  Congress intended for FWS to adopt flexible management options for threatened species that are not as strict as the management mandates for endangered species.

 

FWS, however, has failed to carry out this intent of Congress.  Instead, the prohibitions of section 9, applicable in the Act only to endangered species, are being applied in toto to threatened species as well.

 

The Act needs to be amended to carry out the original Congressional intent of Congress to realize the difference between an "endangered" listing and a "threatened" listing.  We suggest that sections 7 and 9 be amended to provide a separate list of criteria for "threatened" species.  An alternative to the amendment to section 9 would be to require the Secretary to implement conditions of "take" for each threatened species at the time of listing as part of the listing proposal.  The Act must then provide that these will be the only conditions for "take" for that species.

 

4.  Listings Should be Based on the of Threat of Extinction,  Not, Not on the Loss of Historical Habitat.

 

The ESA sets forth five criteria to assist in the consideration in determining whether a species is endangered or threatened.  They are factors to be considered, not ends in themselves.  The ultimate determination is whether the species meets the ESA definition of “endangered” or “threatened.”

 

 One of those criteria is whether the species has been eliminated from all or a significant portion of its historic range.  While the loss of habitat is a legitimate factor to consider in determining whether a species should be listed, a species should not be listed solely because it is not found everywhere it once was.   Application of that principle alone leads to often absurd results, such as the move to list the black-tailed prairie dog as a threatened species, despite the fact that they are plentiful, spread out across a wide range, and repopulate quickly. 

 

We believe the ESA should be amended to clarify that the five listed factors are only aids for consideration, and that the ultimate determination is whether the species is threatened with extinction or endangeredment. 

 

5.  The Act Needs to be Amended to Require De-listing upon Attaining Recovery Goals. 

 

The goal of the ESA is to de-list species that have been on the endangered and threatened species list.  That means they have met recovery goals and are considered “recovered.” 

 

The ESA requires the development of a recovery plan that is developed by a recovery team, a team of scientists and interested parties appointed  to set the goals which determine when a species has recovered. Species meeting the goals are “recovered,” and  noand no longer warrant being on the list.

 

This has not worked in practice, however.  Species that have attained recovery goals remain under the protection of the ESA when they should be de-listed.  Grizzly bear populations in both Glacier and Yellowstone National Parks have exceeded recovery goals since 1990, and there has been no move to de-list.  Instead of de-listing, the agency changed the recovery goals.  Still, these populations exceeded the new recovery goals. Wolves in the Great Lakes region have also exceeded recovery goals, there being almost twice as many wolves in Minnesota than required for recovery under the recovery plan.  Yet, in a proposed reclassification of the gray wolf population in the United States  publishedStates published last year, the Great Lakes wolves were not proposed for de-listing. 

 

Clearly, a new process is needed. 

 

We propose that the ESA be amended to require that upon attainment of recovery goals, a species should be automatically de-listed, and that notice of the de-listing be published in the Federal Register.  Aa mandatory process like this is the only method that will allow reluctant agencies to do what they are required by the ESA to do.   

 

 

    We believe that these suggestions will improve the Act from the standpoint of both species listing and reducing conflicts between a species and affected landowners.  We also believe that these suggestions will restore credibility to the Act and help re-focus the Act to the objectives that were originally intended. 

 

We look forward to working with the committee on bringing about these changes.

 

 

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