WASHINGTON, July 19, 2017 - Bills to delist gray wolves in the Great Lakes region would give states a larger role in listing imperiled species and cap attorney fees awarded to Endangered Species Act litigants were the subjects of debate at a House Natural Resources Committee hearing today.
The bills are the latest attempt to weaken the ESA by Republican lawmakers who assert that the law cripples economic progress and does little more than prevent species extinction instead of actually facilitating the species' recovery.
Committee Chairman Rob Bishop, R-Utah, said at the hearing’s outset that “in coordination with our colleagues in the Senate and this administration,” the five bills discussed at the hearing will “lay the foundation for ESA reform.”
The panel's ranking member, Raul Grijalva, D-Ariz., who represents much of Tucson and a large swath of southern Arizona, disagreed, contending that the bills are simply “warmed over” proposals from 2014 and represent “only a small sample of the 200-plus legislative proposals to weaken the ESA that have been floated since Republicans took control of the House in 2011.”
Following the hearing, Grijalva said he expected the committee majority would try to approve the bills and send them to the House floor, but at this point he knows of no specific schedule to do so. He said he and like-minded Democrats on the committee would seek to marshal public opposition to the bills.
“We have public opinion on our side and will also begin to deal directly with the Senate early to engage them,” Grijalva said. “We have some pretty strong advocates in the Senate.”
Asked about plans to move the bills through committee, a committee spokesperson said the bills “target specific areas of the law that are identified as failing” but that other ESA-related bills might be addressed “as the House develops broader based reforms.”
Four of the bills address domestic ESA issues, while one (H.R. 2603), sponsored by Rep. Louie Gohmert, R-Texas, would ease restrictions on captive breeding of animals by preventing nonnative species found in the U.S. from being treated as threatened or endangered under the ESA. Gohmert emphasized the benefits to breeders of exotic species such as macaws and giant clams, but critics say it would make it easier for businesses that breed foreign species for hunting.
Rep. Collin Peterson, D-Minn., spoke in favor of H.R. 424, which would reinstate 2011 delisting rules for gray wolves in the Great Lakes region. A federal judge reversed the Fish and Wildlife Service’s decision in 2014, which Peterson said “suddenly put farmers and ranchers throughout Minnesota, Wisconsin, and Michigan in a very difficult situation. Currently, it is illegal for a farmer to shoot a gray wolf that is actively attacking cattle or pets. When attacks occur, my constituents are forced to choose between following the law or protecting their livestock and livelihoods.”
The bill is backed by the American Farm Bureau Federation, Minnesota Farmers Union (MFU) and the Public Lands Council and National Cattlemen’s Beef Association, all of which sent letters of support to the committee.
MFU President Gary Wertish said there has been “continued conflict between wolves and livestock farmers” in the northern part of the state. “MFU strongly believes that gray wolf numbers have adequately recovered in Minnesota,” Wertish said, adding that the state Department of Natural Resources “is ready and able to administer the gray wolf population through its current management plans. Minnesota has consistently topped the federal delisting goal of 1,250-1,400 with numbers exceeding 2,000 wolves in recent years’ surveys.”
The bill also would “protect (Wyoming) from further judicial overreach,” Peterson said. The D.C. Circuit Court of Appeals ruled earlier this year that wolves in Wyoming should be returned to state control, reversing a ruling by a district court judge who had agreed with environmental groups that the Fish and Wildlife Service's 2014 delisting rule was unlawful.
Acting FWS Director Greg Sheehan, formerly the director of Utah’s Division of Wildlife Resources, said Peterson’s bill “would not legislatively delist these wolf populations. Rather, it would reinstate science-based rules that went through the public rule-making process.”
On the other bills discussed at the hearing, Sheehan was somewhat more cautious. H.R. 717, introduced by Rep. Pete Olson, R-Texas, would allow the service to prioritize listing petitions by removing the current deadlines in the law. Currently, the service has to make a 90-day finding after it receives a petition. If there is “substantial information” indicating that listing may be warranted, the service then has nine months to decide whether to propose the species for listing.
“We believe that removing the deadlines for reviewing petitions would give the service even more flexibility and reduce the potential for future litigation,” Sheehan said. But he said he wants to work with bill sponsors on a provision that would allow the service to decline to list a species as threatened based on economic impacts. The law currently does not allow FWS or the National Marine Fisheries Service, which administers implementation of the ESA for marine species, to take financial impacts into account when deciding on species listings.
Another bill, H.R. 1274, introduced by Rep. Dan Newhouse, R-Wash., would require that FWS and NMFS consider all data submitted by states, tribes, and local governments, as the “best scientific and commercial data available,” the standard imposed by the law, when making listing and critical habitat decisions.
Sheehan recommended modifying the bill to require that FWS simply consider the data when making its decisions. Automatically classifying data submitted by states, tribes and local authorities as the best available “without regard to its quality, would be a significant departure from scientific integrity standards,” Sheehan said.
H.R. 3131, introduced by Rep. Bill Huizenga, R-Mich., would cap attorney fee awards in ESA cases at $125 an hour. Republican lawmakers have for years attacked environmental groups that sue frequently using the ESA citizen-suit provision, claiming that they are using the law to bankroll their organizations. The bill also would require a litigant to “prevail” in order to receive attorney fees. Under the ESA, courts can award litigations whenever such costs are deemed “appropriate.”
“Capable environmental attorneys are no longer rare or specialized to the point where uncapped attorneys’ fees are justified,” according to a “hearing memo” prepared on the bill. Sheehan, however, told the committee that as drafted, “it is unclear whether the legislation would require that all prevailing fee awards be paid through annual appropriations, rather than having the option to pay through the (Treasury Department’s) Judgment Fund,” as fees currently are doled out.
The Center for Biological Diversity, a target of criticism at the hearing, said the bill “would hamper citizen enforcement and participation in the implementation of the (ESA’s) provisions. Undercutting the ability of citizens to bring lawsuits would make the agency more prone to improperly consider politics in its listing decisions and prevent imperiled species from receiving protections in a timely manner.”
(For links to the bills and written testimony, go here.)
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