Thompson’s panel looks at Endangered Species Act

For better or worse, the Endangered Species Act is endangered.

A congressional committee is looking into the impact the act has on the national forest system.

One of the impacts, according to the experts, is burdensome and often frivolous lawsuits.

The House Agriculture Subcommittee on Conservation, Energy, and Forestry, chaired by Congressman Glenn Thompson (R-5th), held a hearing Wednesday with a variety of experts.

“The service continues to be stymied by a number of frivolous lawsuits,” Thompson said in his opening. He called such actions a “flagrant abuse of taxpayer dollars.”

Congressman Kurt Schrader, D-Ore., said environmental groups have used the act in ways it was not intended and the result has brought timbering in his district to a virtual standstill.

“They’ve made what was originally a good law bad,” he said. “The ESA, at least as it pertains to forests… is meant to shut down forestry.”

“It seems like this law has been hijacked by environmental groups that use it for different reasons,” Thompson said.

“The intent of this law is to not have species go extinct,” Congressman Tim Walz, D-Ind., said. He suggested striking a balance between “biodiversity and protection of species” and preventing “onerous burdens on landowners.”

“No one has said it is perfect,” he said.

The witnesses who testified and answered questions were: Jim Pena, U.S. Forest Service associate deputy chief; Eileen Larence, director of the Homeland Security and Justice division within the U.S. Government Accountability Office; Alva Hopkins III, president of Forest Landowners Association; and Dr. Greg Schildwachter, president of Watershed Results of Arlington, Va.

The ESA’s “draconian one-size-fits-all policy” and “tsunami of listings” mean “it’s not about saving species, it’s about land control,” Hopkins said. And the act is “lining the pockets of environmental groups.”

“No one, including myself, is opposed to protecting species,” he said. However, the ESA “has caused me to have stands that I cannot do any timbering in… at personal cost to me.”

He suggested an incentive, rather than a punishment.

“If I were to be made economically whole, I would be one of the best woodpecker managers that you would have,” Hopkins said.

Pena said lawsuits related to the ESA made up about 18 percent of the hundreds of land management lawsuits over the past 10 years, and that the Forest Service won 52 percent of those cases.

In the cases it loses, the agency must pay the prosecution’s legal fees and costs. Those payments add up to about $875,000 per year, he said. On the other side, “if we prevail, there’s no mechanism to recoup costs,” Pena said.

The Equal Justice Act allows for the government to reimburse the other parties’ legal fees and costs when it loses, but not receive them when it wins, Larence said.

“It was intended to level the playing field,” she added.

Schrader suggested a change to that act could allow the government to be reimbursed for costs and fees when it wins and reduce the number of frivolous lawsuits.

According to Larence, the U.S. Treasury paid out $16.9 million in fees over the last 10 years, with about $1.6 million of that in cases concerning the ESA.

The Forest Service does not budget for, nor record all costs of those cases, Pena said.

“We’re not going out there to get litigated,” he said. “We’re planning to implement that project… to the best of our ability.”

“Rather than tracking costs, we’ve focused our time on the science questions and improving our procedurals,” Pena said. “We’re trying to implement around 82 laws… It’s a pretty complex system that we’ve created.”

Some of the congressmen argued that cost information should be kept to help Congress get a handle on how important it is to curb the lawsuits.

Schildwachter said the Forest Service is “operating under relic laws and old ideas from the last century.”

He suggested steps that would help: a five-year schedule for listing species, decided in public; achievement of recovery goals is cause for delisting; encourage active recovery efforts – presently, the agency “must go through additional processes to get the authority to help”; and give states a formal role in coordination.

“We need more workable politics,” Schildwachter said. “We must be able to address the issues.”

When Congressman Dan Benishek, R-Mich., asked if the Forest Service would support changes to the act, Pena said, “The administration doesn’t support amendments or changes to the ESA.”

“The Forest Service doesn’t have plans to change ESA,” Schrader said. “That shouldn’t preclude Congress…”

“The wrong-headed, perhaps, application of regulations and federal laws, has created unhealthy forests,” Thompson said. “How many more are we putting on that pathway because we took away their habitat? Most species require a diversity of forest.”

There was general agreement among the panelists on that point.

“If you want to have a healthy forest, you… can’t manage it for one particular species and expect it to stay healthy,” Hopkins said.

“That is the central dilemma that we have,” Pena said. “The species mix in any given area is not simple. We get driven into single-species management. It’s difficult to strike a balance.”

Thompson said the root of the matter is improving forest management.

“We want healthy forests,” he said, “because with healthy forests come healthy rural economies.”