[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
JARBIDGE RIVER POPULATION OF BULL TROUT -- TRULY THREATENED?
=======================================================================
OVERSIGHT FIELD HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
July 27, 2002 in Elko, Nevada
__________
Serial No. 107-149
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
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________
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon Hilda L. Solis, California
Michael K. Simpson, Idaho Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado Betty McCollum, Minnesota
J.D. Hayworth, Arizona Tim Holden, Pennsylvania
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Tim Stewart, Chief of Staff
Lisa Pittman, Chief Counsel/Deputy Chief of Staff
Steven T. Petersen, Deputy Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C O N T E N T S
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Page
Hearing held on July 27, 2002.................................... 1
Statement of Members:
Gibbons, Hon. Jim, a Representative in Congress from the
State of Nevada............................................ 1
Prepared statement of.................................... 8
Statement of Witnesses:
Brackett, Bert, Cattle Rancher, Flat Creek Ranch, Rogerson,
Idaho...................................................... 52
Prepared statement of.................................... 53
Carpenter, Hon. John C., Assemblyman, Nevada State Assembly.. 14
Prepared statement of.................................... 16
Murphy, Dennis D., Professor, Department of Biology,
University of Nevada-Reno.................................. 44
Prepared statement of.................................... 47
Roberts, Brad, Chairman, Elko County Board of Commissioners.. 10
Prepared statement of.................................... 11
Trafton, Stephen D., Western Native Trout Program, Trout
Unlimited (California Chapter)............................. 49
Prepared statement of.................................... 50
Vaught, Robert L., Forest Supervisor Humboldt-Toiyabe
National Forest, Forest Service, U.S. Department of
Agriculture................................................ 26
Prepared statement of.................................... 28
Weller, Gene, Deputy Administrator, Nevada Division of
Wildlife, Nevada Department of Conservation and Natural
Resources.................................................. 39
Prepared statement of.................................... 41
Williams, Robert D., Field Supervisor, Nevada Fish and
Wildlife Office, Fish and Wildlife Service, U.S. Department
of the Interior............................................ 20
Prepared statement of.................................... 23
OVERSIGHT FIELD HEARING ON JARBIDGE RIVER POPULATION OF BULL TROUT --
TRULY THREATENED?
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Saturday, July 27, 2002
U.S. House of Representatives
Committee on Resources
Elko, Nevada
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The Committee met, pursuant to call, at 1:03 p.m., at the
Elko Convention Center, 700 Moren Way, Elko, Nevada, Hon. Jim
Gibbons presiding.
STATEMENT OF THE HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEVADA
Mr. Gibbons. The Committee on Resources hearing will come
to order.
I'm Jim Gibbons, your Congressman from the Second District
of Nevada, and I want to welcome all of you here, and I
personally want to thank all of you for coming out today on a
Saturday to attend what I think is going to be a very important
hearing.
As a member of the House Resources Committee, I'm honored
to bring this field hearing to Elko, and I do apologize for
myself and no one else from the Resources Committee being here,
but that's because we finished our work in Washington, D.C.,
this morning at 4 a.m., and on the way to the airport at 5 this
morning, many of the other members had indicated that their
flight schedules and their hearing schedules were so turned
around by the lateness of last night's hearing or this
morning's hearing that they were unable to be here. So I want
to say that simply because I'm the only one here, I can assure
you that all of the records and comments of the testimony will
be on the record, and it's going to be easy for me because I
don't have to yield to any other Congressman to ask questions.
I get to share the whole day with you.
But let me say that Elko is the perfect choice for this
hearing. It is going to be a hearing on the Endangered Species
Act. And Elko in particular is special to me. Not only because
it's an important part of the Second Congressional District
which I have had the privilege to represent for the last 6
years, but it's also because I believe that Elko is God's
country, and it is just an extreme pleasure for anybody to
visit and for me to come here and have one of these hearings.
It's a great honor to be away from Washington, D.C.
Actually it's my opinion that the farther away you get from
Washington, the more common sense you can have in discussion on
any subject. And that's important.
But in all seriousness, having the witnesses and other
interested parties in attendance here today I think speaks
volumes for the dedication of your community and the State of
Nevada as well. This is a beautiful Saturday, and I want to get
right down to business so that we can finish this hearing in a
reasonable amount of time and that each of you can still get
out and hopefully enjoy some part of your Saturday and your
weekend.
Let me begin by telling you what the overview of what we're
going to do here today is, and then we'll get on with it. What
I plan to do is read my opening remarks here. I'm going to go
through a little bit of a Power Point presentation, and that's
why we set it up here on the screen for you, to give you a
little better insight, a little better education, kind of an
ESA 101 course to let you have a better idea of what is
happening with the Endangered Species Act, what is happening in
particular with reference to the bull trout and the ESA.
Let me start with a little history in my remarks because it
goes all the way back to 1973, and that is when Richard Nixon
signed the Endangered Species Act into law, and I think then
the intent of the ESA, and I will quote, was to ``conserve
ecosystems upon which endangered species depend and to provide
a program to conserve such species.'' since that time the
United States has witnessed the listing of over 1200 animals
and plants as threatened or endangered by the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service. A
majority, a vast majority, a large percentage of that number
are out West.
Unfortunately, the ESA, or Endangered Species Act, and if I
say this acronym ESA, I mean Endangered Species Act, has not
been so much a safety net for endangered species at or
approaching the edge of extinction as it has been a primary
land management tool in the hands of regulatory agencies.
I don't believe it was ever the intent of Congress to
provide the Fish and Wildlife Service or the degree of control
it wields over public land management, agencies, and private
landowners today that it has, and it certainly was never the
intent of Congress to vest this power in the hands of very few
people.
The Jarbidge population of the bull trout listed as
threatened by the U.S. Fish and Wildlife Service on March 30th
of 1999 is a case in point of how ESA's sword is sometimes
wielded in isolated western watersheds. The question regarding
the success of the Endangered Species Act will be judged
historically on the validity of the species that were listed.
This hearing today is one of a series of hearings by the
House Resources Committee. We have spent much of the 107th
Congress looking at how the ESA requirement to make
determinations on the basis of whether the best scientific and
commercial data has been interpreted by the regulatory agencies
as reflected in listing and consultation decisions, and while
erring on the side of conservation is prudent, philosophical
guidelines for decisionmakers charged with the survival of the
species can sometimes be an overzealous use or abuse of the
flexibility that is intrinsic to this philosophy, and that is a
concern of all of us.
We have heard it said that the South Canyon Road issue was
a primary impetus for this listing. I, too, was troubled by the
sequence of those events. But please note we are here today to
talk about the motives for the listing, but the basis for the
documenting in the listing rule, and this is our primary
purpose, not necessarily to talk about the Jarbidge Road or the
South Canyon Road.
We want to see if the decision to list the bull trout was
based solely on the best available scientific data as is
required by the Endangered Species Act and if that data is
science based or more in the realm of speculation or opinion.
We also want to hear what some of the latest science may be
on the Jarbidge population, what criteria must be met to delist
the specific bull trout population, and to determine whether we
are in a position to proceed toward delisting.
I'm also very interested to hear from our local officials
and impacted residents of the Jarbidge watershed area, and Elko
County in particular, their stories, and their stories are no
less important than our discussion of good science. Responsible
environmental stewardship can go hand in hand with meeting
society's needs.
I want to thank everyone for being here this morning, and I
also want to point out something. It's taken a tremendous
amount of work putting this hearing on, and I appreciate the
interest shown by the number of people who have turned out for
this hearing today. Because this is an official Congressional
hearing as opposed to a townhall meeting, we have to abide by
certain rules of the Committee and of the House of
Representatives. So we kindly ask that there be no applause of
any kind or any kind of demonstration with regard to testimony.
It is important that we respect the decorum of the House
rules and the rules of the Committee, and I look forward to
this hearing from the panel of witnesses today. Let me remind
the witnesses that under our Committee rules, they must limit
their oral statements to 5 minutes, but that their entire
statement will appear in the record.
We will also allow the entire panel to testify before
questioning the witnesses, and I would like to recognize--
before I recognize the first panel, what I would like to do is
take a moment and go through this Power Point briefing to sort
of give you the lay of the land, and as I said, Endangered
Species Act 101 course that might help you better understand
what takes place and how it has affected you in particular in
Elko County with the bull trout.
So first slide. What's important is to look at the
chronology of the listing of the bull trout. In November 1st of
1994, a group called Friends of the Wild Swan brought a lawsuit
to force the Fish and Wildlife Service to list various members
of various species including the bull trout as endangered. The
Fish and Wildlife Service then determined that while it may
have been ripe for consideration, that they had other things to
do, and therefore, in '96, the Oregon District Court directed
the Fish and Wildlife Service to go back and reconsider that.
In other words, moving their--forcing their decision out rather
than allowing for them to look at other areas.
March 13th of '97, they came out with a proposed rule, but
it did not list the bull trout. Therefore, in April of '97, the
Court ordered the Fish and Wildlife Service to go back and
reconsider their decision, and in June of '97, a proposed rule
by the Fish and Wildlife Service came out again but did not
list the bull trout.
So therefore, in December of '97, the court ordered them
again to reconsider what they had done. And in '98, a proposed
rule finally came out after 4 years of being pushed by the
courts to list the bull trout. And they came out with a
proposed rule in 1998. In August of '98, they gave a 240-day
emergency listing. This was probably precipitated by the road
issue that we talked about earlier.
In March 30th of 1999, the Fish and Wildlife Service
finally listed the bull trout as threatened.
That's the chronology of where we are and how we got to
where we are today. Let me give you some definitions that might
help you. The DPS is another acronym for distinct population
segment. Metapopulation is the interaction or the interacting
network of local populations of fishes that may be different
but they do interact.
A nodal is the seasonal migration area, probably the lower
point along the stream where fish migrate up and down, and then
you get to a focal point, which is the upper colder part of the
water where spawning usually takes place. When you hear those
areas and you get to migratory versus resident, bull trout are
migratory in their adult stage, they are not necessarily a
resident fish, but they do migrate and have spawning in the
upper areas in the colder waters.
To look at the basis for a threatened listing fish is the
purpose of this hearing, so the rule and issue of the Fish and
Wildlife Service is what we're going to talk about today.
Next. Here are some of the questions we want to ask. Was
the decision based on the best available scientific data? Is
there any new information which might help us make that
decision? And what is the criteria needed and necessary to
delist? And what further information is needed if we don't have
it? What would be a recovery program or what would one look
like if we had one?
And the questions we're not asking, almost as important.
What was the motivation behind the listing? We don't want to
get into that. And is the South Canyon Road Federal or county?
That is outside of the purview of this hearing today.
And is the Nevada Department of Wildlife report on the bull
trout based on best available science? We're not going to talk
about what Nevada did. We're going to talk about what the
Federal Fish and Wildlife Service did.
Here is our ESA 101. Remember I said there were 1200
species listed, approximately 1200 around the United States.
But only 11 of those 1200 have ever been delisted. And the
evidence of program failure or success is one of the questions.
Because the purpose of the ESA to bring species back from the
edge of extinction and get them off of the Endangered Species
Act listing. That is the purpose of the Act.
So those decisions to list the species must be made by this
criteria and this criteria alone, and that is solely based on
the basis of the best scientific and commercially available
data.
Is there too little data? Well, the Fish and Wildlife
Service--when there is too little data, let's look at this.
Here is what the Fish and Wildlife Service handbook says. You
got to give the benefit of the doubt to the species. And the
conference report number 697 of the 96th Congress says that the
best information available language was to give benefit of the
doubt to the species.
The problem is that gives too much control with vague
language when you say the benefit of the doubt to very few
people who make these decisions.
And that's why we're coming and working on the Hansen bill
which is designed to improve the language of the Endangered
Species Act so that it works to do what the intent was, to
bring species back. Because when you have 11- or 1200 species
out there, with the label endangered or threatened, and you do
nothing--for example, there's been a 4-year hiatus since the
listing of the bull trout, and we still don't have a plan to
delist them, a plan to bring them back from extinction. That
tells me that we either have too much focus on listing plants
and not enough focus on getting them off, getting them back
from the brink of extinction.
Court decisions. Well, here are some recent court decisions
that will talk you through all of the concerns that have been
brought up. First of all, agencies are not obligated to conduct
studies to obtain missing data. Agencies cannot ignore
available information.
Congress, the intent is that the Fish and Wildlife Service
take conservation measures before a species is conclusively
headed for extinction. And the Service must utilize the best
scientific data available, not the best scientific data
possible.
The bar that the Fish and Wildlife Service has to clear in
terms of listing, in terms of evidence is very low, but it must
at least clear some evidentiary purpose in order to list it.
The mere speculation as to the potential for harm is not
sufficient.
Those are court rulings. They are very important and very
significant on how they apply to the decision to list a
species.
Now, H.R. 4840, which is what we're talk working on, is
called the Sound Science for Endangered Species Act Planning
Act of 2002. There is a preference in the Act for empirical,
field tested, and peer reviewed data. Any scientist will tell
you this is the standard by which they judge scientific data on
making any decision.
The endangered or threatened determination is due to one or
more of five factors: 1, the present or threatened destruction,
modification, or curtailment of its habitat or range; 2,
overutilization for commercial, recreational, scientific or
educational purposes, disease or predation; the inadequacy of
existing regulatory mechanisms--and we'll talk about all of
these--and other natural and man-made factors affecting its
continued existence.
Now, here is Fish and Wildlife listing bases. The present
or threatened destruction, modification or curtailment of its
habitat or range; stream temperatures--and here is where we get
into the decision why we're here--stream temperatures are
likely--that's not sound, that's not definitive, just a vague
it is likely--likely to be elevated by past forest practices.
They have no data, but that's the reason, one of the reasons
why they listed it.
Sediment from road work is likely still impacting habitat.
Yet they have no data on doing that.
Road maintenance practices continue to impact habitat.
Well, they have not studied it, there is no data.
Grazing effects are minor and localized. So grazing was
actually taken out of the picture because its impacts are minor
and localized, and it did not pertain to the listing of the
bull trout.
Concern over mine adit discharges or mine tailings may be
the source of problems. Those last two. There is no data on
that. Nothing was studied, nothing was brought out to list that
information, no empirical study, no data.
The only migration barrier identified has been fixed. They
put a ladder in there and found now bull trout migrating beyond
the ladder. So they found that the fish do migrate. So the last
one, the migration barrier has been taken care of.
And water temperature is likely a barrier. Although water
temperature data is missing. There is no water temperature
data.
Now this is the Federal Fish and Wildlife Service.
Overutilization for commercial, recreational or scientific
or educational purposes. Ambiguous, it's ambiguous on illegal
harvest and incidental take. State scientific collection
requirements are minimal.
Disease or predation. Diseases are not thought to be a
factor. Rainbow trout are again likely negatively affecting
bull trout. No data. It's just a speculation. It's likely that
it will affect the bull trout.
The inadequacy of existing regulatory mechanisms. Poorly
engineered roads and irresponsible maintenance practices. Bull
trout task force did not produce a plan. Four years later.
Other natural or man-made factors affecting its continued
existence. Small isolated populations are susceptible to
natural events.
Every population in the world, you and I. Dinosaurs were
subjected to this same problem. A meteoric impact can eradicate
a population. A forest fire in the area, sediment runoff after
the forest fire, plugging or choking the stream off, would
dramatically affect that population. So every population has
that same, whether it is a large or small, isolated, but even
isolated small populations.
What some scientists are saying who have reviewed all of
the peer data. Let's go through some of their comments.
Tom McMahon, a known biologist scientist and environmental
extinction scientist said isolation from other species and
small population size is significant. The Nevada Department of
Wildlife data is questionable because of the way it was
collected and extrapolations that they made from that data.
Adequate population trend data is not available. So no one
has studied the population trend over a long enough period of
time to give you a sort of indication whether the population is
decreasing or rising.
The Bitterroot, Montana, bull trout, which is a similar
bull trout, is isolated, it's a remnant fish, but it was
abundant before 1930.
Here is the American Society of Fisheries review of the
data, what they say. Nevada data has problems, as we just
talked about. It is estimated--they estimate, they have drawn
some conclusions, they estimate 629 of these bull trout are in
the west fork of the Jarbidge River. They give some ratio, and
I'm not sure how they calculated it out, but they say there is
.026 fish per mile--I think that is mile; maybe meter--it puts
population in the high risk category. So it is small numbers
there.
The high probability of extinction is significant if the
population is less than 2,000 fish. There is a 20 percent
probability of persistence. That means there is a one in five
chance if we do nothing the fish are going to survive. There is
a four in five chance that this fish because of its small
population, small--or it has a high probability of extinction
because of its population and small numbers. Four and five says
that it will not survive no matter what you do.
The effective population of 19 to 64 fish, and that's far
below the 500 needed that they say is necessary for the bull
trout to succeed.
Here we go again. Here is the reviewer number 2 from the
same American Society of Fisheries. No evidence of interaction
of subpopulations. That means these fish have different little
schools of populations that migrate and interact up and down
the stream area. And the focal distribution is small, making
even protected areas vulnerable to stochastic events. Those are
monumental events that take place, as we talked about.
Dunham, another scientist, minimum population science,
extinction risk is now moderate to high because of the
population. Isolation of populations, extinction risk moderate
to extreme. The replication populations, extinction risk
moderation to extreme. Replication is those fish that are
capable of reproducing and being able to sustain a population.
There is no basis to assume that the population is at
capacity for the system. Although Nevada, on the other hand,
believes that because of the environment and because of the
ecosystem and the habitat for the bull trout, that its
population size today is pretty much governed by the
environment, size of the stream and the habitat for it. In
other words, it would be larger if it had the available habitat
to do that, and if it were less, it would be smaller.
Preliminary evidence suggests that subpopulations are not
metapopulations. Subpopulations and metapopulations means they
are interacting.
Greg Watson, Fish and Wildlife Service. Assume that bull
trout historically distributed more widely. Bull trout is a
``K'', a predatory species of fish. Numbers never were high.
That's what they are saying.
Large enough basin to be self-replicating.
Catastrophic events have always happened, migratory feature
is a recovery mechanism. In other words, if you have a fire at
some point in the stream, fish will migrate one side or the
other, and as soon as the sediment clears out of the stream
they will migrate back up and they will recover, but their
migratory instincts to move away from where the environment is
not suitable for them is a recovery mechanism that is
instinctive to the fish.
The bull trout are particularly selective in their
requirements. Yes, they are. They have to have cold water.
And population numbers have high magnitude of variability.
In other words, when we looked at some of the numbers there is
an assumption there is 629 bull trout. I don't think they went
out and counted every one, but they have a high number of
variability between the numbers that they can count.
Don Chapman, another scientist, said the strongest case is
for cataclysmic events. We talked about that. If a meteor
strikes the Jarbidge area, guess what, folks? Not only will the
bull trout be gone, we will probably all be gone.
Speculates that species had a much larger range. That's
what he is saying. That is just speculation that it had a much
larger range.
So in conclusion what we can say is that adequate data is
lacking for this listing. The genetic data is lacking, the
population trends haven't been studied, habitat needs have not
been detailed. What we need to do is do a more intensive study
of the fish either before you list it or after it is listed to
figure out how to get it unlisted.
That is the basic premise of where we are today. That's
your ESA 101 course, ladies and gentlemen. And as I said,
monitoring is needed, and I believe the issue today is, was the
best scientific data used to make this determination, and
that's what we will find out today.
[The prepared statement of Mr. Gibbons follows:]
Statement of Hon. Jim Gibbons, a Representative in Congress from the
State of Nevada
Ladies and Gentlemen, thank you for being here today for this
important hearing. As a member of the House Resources Committee, I am
honored to bring this field hearing to Elko, Nevada.
Elko is a special community for me--not only because it lies within
the Second District of Nevada--which I have had the privilege of
representing in Congress for the last 6 years--but also because I
consider this God's country. Also, it is my opinion that the further
away we get from Washington, D.C. ... the more common sense we can
interject into this discussion. But, in all seriousness, having our
witnesses and other interested parties in attendance today speaks
volumes of your dedication to this community--and to the State of
Nevada.
It is a beautiful Saturday--I want to get right down to business so
that we can finish this hearing in a timely and productive manner--and
so that each of you can get out and still enjoy the rest of your
weekend.
In 1973, President Richard Nixon signed the Endangered Species Act
into law. The intent of ESA is to ``conserve ecosystems upon which
endangered species depend and to provide a program to conserve such
species.'' Since that time, the United States has witnessed the listing
of over 1,200 animals and plants as Threatened or Endangered by the
U.S. Fish and Wildlife Service and the National Marine Fisheries
Service. As of this time last year, only 11 species had been de-listed
due to recovery.
This alone begs the question: Do we use these 11 species as
evidence that ESA has failed?...Or, do we judge the success of the
program on the number of listed species that still have intact
populations? The answer to that question partially depends on whether
one believes that the listed species were truly threatened or
endangered to begin with!
Unfortunately, the ESA has not been so much a safety net for
endangered species at or approaching the brink of extinction...as it
has been a primary land management tool in the hands of the regulatory
agencies.
It was never the intent of Congress to provide the U.S. Fish and
Wildlife Service the degree of control it wields over public land
management agencies and private land owners today. And, it certainly
was never the intent of Congress to vest this power in the hands of so
few.
While Army Corps of Engineers aluminum-sulfate laden sludge still
continues to be pumped into the Potomac River along Washington D.C.,
unhindered by ESA restraints, U.S. Fish and Wildlife Service and
National Marine Fisheries Service continue their assault on the West.
The Jarbidge population of bull trout, listed as threatened by the
U.S. Fish and Wildlife Service on March 30 of 1999, is a case-in-point
of how the ESA sword is sometimes wielded in isolated western
watersheds. The question regarding the success of the Endangered
Species Act will be judged historically on the validity of the species
that were listed.
This hearing today is one in a series of hearings by the House
Resources Committee. We have spent much of the 107th Congress looking
at how the ESA requirement to make determinations on the basis of
whether the ``best scientific and commercial data'' has been
interpreted by the federal regulatory agencies as reflected in listing
and consultation decisions.
While erring on the side conservation is a prudent philosophical
guideline for decision-makers charged with the survival of species,
overzealous use...or abuse...of the flexibility intrinsic to this
philosophy is a real concern.
We have heard it said that the South Canyon Road issue was a
primary impetus for this listing. I too was troubled by the sequence of
events.
But--please note--we are not here today to talk about the motives
for the listing...but the basis for it, as documented in the listing
rule. This is our primary purpose.
We want to see if the decision was based ``solely on the best
available scientific data'' as is required by the Endangered Species
Act...and if that ``data'' is science-based or more in the realm of
speculative opinion.
We also want to hear what some of the latest science is on the
Jarbidge population; what criteria must be met to de-list this specific
bull trout population; and, determine whether we are in a position to
proceed toward de-listing.
I am also very interested to hear from our local officials and
impacted residents of the Jarbidge watershed and Elko County. Their
stories are no less important than our discussion of good science.
Responsible environmental stewardship can go hand-in-hand with meeting
society's needs.
The scales are currently tipped against any economic development
which improves quality of human life.
They are tipped against economic development that also provides a
capacity for environmental stewardship unavailable in other parts of
the world.
Returning to a balance includes shedding light on the doomsday
litany and exaggerations of the environmental movement.
Decisions that disregard science will never stand the test of time.
I want to thank everyone for being here this morning, and I also
want to point out something. It's taken a tremendous amount of work
putting this hearing on, and I appreciate the interest that is shown by
the number of people who have turned out for the hearing today. Because
this is an official Congressional hearing, as opposed to a town hall
meeting, we have to abide by certain rules of the Committee and of the
House of Representatives. So we kindly ask that there be no applause of
any kind or any kind of demonstration with regards to the testimony.
It is important that we respect the decorum and the Rules of the
Committee. I look forward to hearing from the panels of witnesses
today. Let me remind the witnesses that under our Committee Rules, they
must limit their oral statements to five minutes, but that their entire
statement will appear in the record. We will also allow the entire
panel to testify before questioning the witnesses.
I would like to recognize our first panel of witnesses.
______
With that, let me turn to our first panel and you don't
have to listen to me any more. I'm going to turn to panel one,
which is Brad Roberts, Chairman of Elko County Board of
Commissioners, and John Carpenter, Assemblyman for the State of
Nevada Assembly, and those two, if you would come up,
gentlemen, and take a seat.
Gentlemen, while you are being so kind to come, and
remember, we have a limited timeframe and a number of panels to
get through, and I took more time than I needed. And so I ask
you to be succinct, to the point. Your full and complete
recorded testimony will be entered into the record, and if you
could summarize it, it would be all the better.
Who would like to start?
Mr. Roberts. I can start.
Mr. Gibbons. Beauty over age. Just kidding, Brad.
STATEMENT OF BRAD ROBERTS, CHAIRMAN, ELKO COUNTY BOARD OF
COMMISSIONERS
Mr. Roberts. OK. My testimony actually runs about 5 minutes
12 seconds, if I could be allowed the additional 12.
Mr. Gibbons. Go for it. I'll give you the extra 12.
Mr. Roberts. Congressman Gibbons and Members of the Panel,
thank you for the opportunity to present testimony at this
important hearing. I am Brad Roberts, Chairman of the Elko
County Board of Commissioners. My testimony today will address
the social and economic impacts of the listing of the Jarbidge
river population OF bull trout.
It is not possible today for me to provide you with the
actual dollar impact this listing has had on the town of
Jarbidge or our county. Jarbidge, Nevada, is one of the most
remote towns in the lower 48 states. The town's business is
comprised of bed and breakfasts, one bar-restaurant, a general
store, and a gasoline station. In addition, two outfitters
conduct business in the Jarbidge Mountains.
The Jarbidge area is renowned for its Class 1 airshed,
scenic beauty and numerous outdoor recreation opportunities.
The key to the pleasurable experience of these visitors is
access to the forest system lands in the area. In turn, these
visitors are key to Jarbidge economic well being.
A General Accounting Office report issued in April 1999
identified the Jarbidge area as one with high potential of
catastrophic fire. If a fire were to begin south of the town of
Jarbidge, it would at the very least inhibit visitors from
spending time in the area due to the diminished recreational
opportunities and scenic values. In the worst case, the town of
Jarbidge could be destroyed.
The listing of the bull trout has prevented Nevada Division
of Wildlife from stopping sport fishing in Jarbidge River. As
the fishing experiences diminished by the lack of stocking,
fewer anglers will visit Jarbidge, which reduces the revenue of
the town's businesses.
According to an Environmental Assessment prepared by the
Forest Service in 1998, there are six fewer campsites available
in the canyon than there were before the 1995 flood that
damaged South Canyon Road. The lack of campsites undoubtedly
has reduced the number of camping visitors, and dispersal of
forest visitors is hampered by the lack of suitable campsites
resulting in overuse of the remaining facilities, some of which
include toilets which cannot be serviced and certainly create a
greater environmental concern than some silt in the water.
The Forest Service estimates that visitors to the forest
system lands are increasing by two to 3 percent per year, but
the Jarbidge area has experienced a reduction in facilities
available for use by the visiting public. Fewer campers mean
fewer dollars spent in Jarbidge. In fact, Jack Creechley, owner
of the Outdoor Inn, says that his business has fallen
approximately 20 percent since the bull trout was listed.
Another business has closed.
Clarke and Josaitis in the ``Recreation Specialist's Report
for Jarbidge Canyon Road Reconstruction Project'' dated
February 25th, 1997, state: ``it has been reported by Jarbidge
business owners and observed in the field that visitor use in
Jarbidge Canyon has dropped since the flood event. The overall
decline in the number of people visiting the area is expected
to continue under the current condition.''
About 10 years ago--excuse me--for about 10 years the
county has been trying to comply with the Federal Clean Water
Act by installing a filtration plant for the Jarbidge River
water supply which has 100 connections. Because of a variety of
bureaucratic complications, we are now looking at a $1 million
chlorination plant for a population of 60. Unfortunately, the
bull trout is square in the middle of this causing us to do
additional scoping and analysis prior to gaining approval for
this vital project. The loss of a cooperative relationship
between Elko County and the Forest Service has done no good for
either party and has had a ripple effect throughout the county.
A direct economic impact of this damaged relationship is
the cost to both Elko County and the United States of the
mediation and court sponsored settlement proceedings.
The total appraised value of private property in Jarbidge
is 4,206,000. Prior to the listing it was virtually impossible
to acquire property in Jarbidge. Today about 10 percent of the
property is for sale, and there are essentially no buyers
coming forward. One business has closed.
These may not seem like severe impacts, and our situation
certainly pales in consideration to Klamath Basin, but this
county, the fourth largest in the continental United States,
with only about 50,000 residents, has about 72 percent of its
area controlled by the Federal Government. Sales and property
taxes are vital, and when anything adversely impacts our tax
revenues, the entire county feels it.
Clearly, the impacts of actions taken by Federal agencies
are felt throughout our county. The listing of the bull trout
and its subsequent effects on recreation in the town of
Jarbidge has been detrimental to our well being.
The bull trout is a survivor. It is a glacial relic, and
there is no glacier for survival. It has lasted through floods,
intensive grazing, logging, mining and sports fishing. It co-
existed with South Canyon Road for most of a century.
Therefore, I conclude my prepared remarks with a request
that you use every tool available to measure whether or not the
bull trout is truly threatened by our road or is, as we
believe, doing just as well as it is has for a very long time.
Thank you for this opportunity to testify.
[The prepared statement of Mr. Roberts follows:]
Statement of Brad Roberts, Chairman, Elko County Board of Commissions
Mr. Chairman, and members of the panel, thank you for the
opportunity to present testimony at this important hearing. I am Brad
Roberts, Chairman of the Elko County Board of Commissioners. My
testimony today will address the Social and Economic impacts of the
listing of the Jarbidge River population of bull trout.
It is not possible today for me to provide you with the actual
dollar impact this listing has had on the town of Jarbidge or our
County. What I will share with you is a brief rundown of the adverse
social and economic impacts we have seen, so that you might better
understand how important this issue is to our County.
Jarbidge, Nevada, is one of the most remote towns in the lower 48
states, and could be considered as a mining ghost town. There are some
12 year-around residents of the town, and in summer this increases to
50 or 60. A large percentage of the summer residents are retired
persons. The towns businesses comprise: a bed and breakfast, one bar/
restaurant, a general store, and a gasoline station. Other amenities
include a U.S. Post Office and Volunteer Fire Department. In addition,
two outfitters conduct business in the Jarbidge Mountains.
The Jarbidge area is renowned for its Class 1 airshed, scenic
beauty, and numerous outdoor recreation opportunities. These factors
directly account for the bulk of Jarbidge commerce. Visitors enjoy a
variety of leisure pursuits, including hunting, fishing, camping,
hiking, backpacking, horseback riding, ATV and four wheel driving,
birdwatching, and rockhounding. Key to the pleasurable experience of
these visitors is access to the Forest System lands in the area. In
turn, these visitors are key to Jarbidges economic well-being.
Repair of South Canyon Road has been stymied by the emergency
listing of the bull trout as a threatened species under the Endangered
Species Act of 1973. Because the road has not been repaired, fire crews
cannot readily access fires in Jarbidge Canyon south of Pine Creek,
effectively placing the first fire line about three miles south of
Jarbidge. This is unacceptable, as it clearly places a priority on the
bull trout at the expense of people, their property, and the Forest. As
a commissioner of this county, I am charged with protecting the lives
and property of the county's residents. The listing of this fish is
preventing me and my fellow commissioners from carrying out our
mandate.
A General Accounting Office report issued in April of 1999,
identified the Jarbidge area as one with high potential of catastrophic
fire. If a fire were to begin south of (or, up-canyon of) the town of
Jarbidge, it would, at the very least, inhibit visitors from spending
time in the area, due to diminished recreational opportunities and
scenic values. In a worst case, the town of Jarbidge could be
destroyed.
Two issues are central to preventing a catastrophic fire: first,
access is necessary so that fire suppression can be implemented while a
fire is in its earliest stages. Secondly, land managers need access in
order to properly reduce the fuel loads so that fires will be of lower
intensity.
In addition to the fire suppression issue, the listing of the bull
trout has prevented the Nevada Division of Wildlife from stocking
sportfish in Jarbidge River. As the fishing experience is diminished by
the lack of stocking, fewer anglers will visit Jarbidge, which reduces
the revenue of the towns businesses.
According to an Environmental Assessment prepared by the Forest
Service in 1998, there are six fewer campsites available in the canyon
than there were before the 1995 flood that damaged South Canyon Road.
This may not sound like much, until you realize that there are only
some 23 campsites remaining in one of the premier outdoor recreation
locations in the state of Nevada. The lack of campsites undoubtedly has
reduced the number of camping visitors, and dispersal of Forest
visitors is hampered by the lack of suitable campsites, resulting in
overuse of the remaining facilities. Some of which include toilets
which cannot be serviced and certainly create a greater environmental
concern than some silt in the water. Furthermore, according to the
Forest Services 1998 EA, ``Jarbidge Canyon is an important avenue for
forest visitors to access the [Jarbidge] wilderness.''
The Forest Service estimates that visitors to Forest System lands
are increasing by 2 to 3 percent per year, but the Jarbidge area has
experienced a reduction in facilities available for use by the visiting
public. Fewer campers means fewer dollars spent in Jarbidge. In fact,
Jack Creechley, owner of the Outdoor Inn, says that his business has
fallen approximately 20 percent since the bull trout was listed.
Another business, the Red Dog Saloon, has closed. Numbers of hunters
have also declined, because the Nevada Division of Wildlife has reduced
the numbers of deer tags issued, largely as a result of the drought we
have been experiencing. While the reduction in hunters is not directly
related to the listing of bull trout, it does become a part of the
cumulative effects on the financial well-being of Jarbidge. Combined
with decreasing numbers of fishermen, campers, and other
recreationists, the impact is severe.
The ``Economic Specialist's Report for Jarbidge Canyon Road
Reconstruction Project,'' authored by Doug Clarke and Clare Josaitis of
the Forest Service, dated February 25, 1997, states that road
reconstruction would result in the greatest numbers of visitors to the
Jarbidge area when compared with no road reconstruction. The report
states, ``The local economy would do best under this alternative.''
Clarke and Josaitis (1997a) note that ``Many factors, both natural and
human caused, have cumulatively affected the economy of the town of
Jarbidge.'' Included in their list of factors are:
LLack of opportunities for further development of the town
because it is surrounded by National Forest system lands
LThe remote location of the town and its distance from
substantial population centers
LThe popularity of designated wilderness and its proximity
to the town
Clarke and Josaitis, in their ``Recreation Specialists Report for
Jarbidge Canyon Road Reconstruction Project,'' also dated February 25,
1997, note that, ``Prior to the 1995 flood, the Jarbidge Canyon road
ended at Snowslide Trailhead, which was the most popular portal to the
Jarbidge Wilderness, among horseback riders, backpackers and
dayhikers.'' They also state, ``It has been reported by Jarbidge
business owners and observed in the field that visitor use in Jarbidge
Canyon has dropped since the flood event. The over all decline in the
number of people visiting the area is expected to continue under the
current condition.'' Regarding the probable consequences of repairing
the road, the report indicates, ``Restored vehicle access to four camp
areas above Pine Creek, would: (1) reduce but not eliminate the
competition for campsites, (2) limit the amount of pioneering of new
sites, and (3) reduce the amount of unauthorized camping within the
town of Jarbidge.'' Clarke and Josaitis (1997b) indicate that
administration of the wilderness boundary would be most effective with
the road repaired.
For about ten years the County has been trying to comply with the
Federal Clean Water Act by installing a filtration plant for the
Jarbidge water supply, which has 100 connections. Because of a variety
of bureaucratic complications, we are now looking at a one million
dollar chlorination plant for a population of 60. Unfortunately, the
bull trout is square in the middle of this, causing us to do additional
scoping and analysis prior to gaining approval for this vital project.
In addition to the potential for catastrophic fire, loss of
recreation opportunities, and additional costs to the County and
community of Jarbidge, another significant social impact of the listing
of the Jarbidge River bull trout is the deterioration of the
relationship between Elko County and its residents with the Forest
Service. Prior to the listing, the Forest Service and Elko County had
worked cooperatively, both on maintenance of South Canyon Road, and on
repair of the road after the 1995 flood. With three years passing and
nothing done to restore the road, Elko County had grown weary of what
the Chief of the Forest Service, Dale Bosworth, terms ``analysis
paralysis'' exhibited by the Forest Service, and in July 1998 the
County took steps to repair the road, citing the threat of catastrophic
fire as the reason.
The bull trout had been considered for listing, but had been
considered low on the Fish and Wildlife Services priority list. The
Fish and Wildlife Service was sued by environmental groups, and as part
of the settlement agreement reached in that lawsuit, published notice
of intent to list various populations of bull trout under the ESA. This
was done in June of 1998. In July of 1998, when Elko County authorized
repair of South Canyon Road, citing the threat of catastrophic fire,
the Jarbidge River population was emergency listed as endangered. The
emergency listing alleged that Elko Countys road repair efforts would
put the fish in immediate danger. The County was ordered by the Corps
of Engineers to cease and desist repair efforts one day after they
began. Nevada Division of Environmental Protection issued its own cease
and desist order, which was later found to be unsubstantiated.
Numerous previous studies conducted by the Forest Service had been
favorable to road repair. With the emergency listing, everything
changed. Without involving the County, the agency decided to close the
road, which it did in November and December of 1998. Elko County
Commissioners, and many Elko County residents, were understandably
upset by this unilateral action. The cooperative association between
the County and the Forest Service was badly damaged.
The loss of a cooperative relationship between Elko County and the
Forest Service has done no good for either party, and has had a ripple
effect throughout the County. A direct economic impact of this damaged
relationship is the cost, to both Elko County and the United States, of
the mediation and court-sponsored settlement proceedings. A number of
Elko County residents will also tell you that Elko Countys economic
diversification efforts have been hampered by Elko County taking a
stand against what we Commissioners perceived as a federal agency
overstepping its authority.
We realize that the Forest Service has nothing to do with the
listing of the bull trout. We also realize that it is far better that
the County and the Forest Service work together than to be at
loggerheads. Elko County and the Forest Service have recently begun the
lengthy process of restoring an air of cooperation, but it will not
happen overnight.
The assessed valuation of private property and improvements in
Jarbidge is some $1,472,380. Our assessments are based on 35% of
appraised value, so the total appraised value of private property in
Jarbidge is $4,206,800. Prior to the listing, it was virtually
impossible to acquire property in Jarbidge. Today, about 10% of the
property is for sale, and there are essentially no buyers coming
forward. One business has closed.
These may not seem like severe impacts, and our situation certainly
pales in comparison to the Klamath Basin. But this county, the 4th
largest in the continental United States, with only about 50,000
residents, has about 72% of its area controlled by the federal
government. Sales and property taxes are vital, and when anything
adversely impacts our tax revenues, the entire County feels it.
Clearly, the impacts of actions taken by federal agencies are felt
throughout our county. The listing of the bull trout, and its
subsequent effects on recreation, the town of Jarbidge, and our
relationship with the Forest Service, has been detrimental to our well-
being.
The bull trout is a survivor. It is a glacial relic and there is no
glacier for survival. It has lasted through floods, intensive grazing
(nearly 400,000 sheep at the turn of the century), logging (stories
tell of the stream being choked with sawdust for lumber for the mines),
mining (which included the dumping of toxic chemicals into the stream),
and sportsfishing. It coexisted with South Canyon Road for most of a
century. Therefore, I conclude my prepared remarks with a request that
you use every tool available to measure whether or not the bull trout
is truly threatened by our road, or is, as we believe, doing just as
well as it has for a very long time.
Thank you for the opportunity to testify. I will be happy to answer
any questions you wish to ask.
References Cited
Clarke, D., and Josaitis, C., 1997(a), Economic Specialists Report for
Jarbidge Canyon Road Reconstruction Project, USDA Forest
Service, 8 pp.
Clarke, D., and Josaitis, C., 1997(b), Recreation Specialists Report
for Jarbidge Canyon Road Reconstruction Project, USDA Forest
Service, 12 pp.
General Accounting Office, 1999, Western National Forests A Cohesive
Strategy is Needed to Address Catastrophic Wildfire Threats,
report GAO/RCED-99-65, 60 pp.
USDA Forest Service, 1998, Jarbidge River Environmental Assessment for
Access and Restoration Between Pine Creek Campground and the
Jarbidge Wilderness, Humboldt Toiyabe National Forest, June,
1998, 52 pp. plus appendices.
______
Mr. Gibbons. You did that in less than 5 minutes. Very
good.
John Carpenter, welcome.
STATEMENT OF JOHN C. CARPENTER, ASSEMBLYMAN, NEVADA STATE
ASSEMBLY
Mr. Carpenter. Thank you, Jim.
I really appreciate you being here today, and I think it
shows the great commitment that you have to this area to come
and listen to what we have to say.
I don't know if it would be proper or not, but I would like
to enter this into the record if I could. It come out of last
night's Free Press. I think two very good editorials that might
lend some credence to what we're talking about here today.
Mr. Gibbons. Without objection it will be entered into the
record.
[The information has been retained in the Committee's
official files.]
Mr. Carpenter. Thank you.
As I said before, thank you very much for holding this
hearing. We're most appreciative of your efforts to reform the
Endangered Species Act. I believe the hearing today will give
more insight into this contentious and important subject and
the need for reform.
It is well to start with a quote from the Federal Register
when the bull trout was listed as threatened. ``the Jarbidge
River population segment, composed of a single subpopulation
with few individuals, is threatened by habitat, degradation
from past and ongoing land management activities such as road
construction and maintenance, mining and grazing, interaction
with nonnative fishes, and incidental angler harvest. We based
this final determination on the best available science and
commercial information including current data and new
information received during the comment period.''
And I'd like to say I also attended their hearing at
Jackpot when they were discussing this, and the story has not
changed since that hearing.
My analysis of the situation at the time of the listing is
that road construction and maintenance was minimal. There had
been no mining or grazing in the area of South Canyon for many
years. The same situation exists today. The only interaction
the bull trout have with nonnative fish are when they swim by
each other.
Angler harvest has never been a problem. Who would want to
catch a bull trout? It's going to cost you 10,000 bucks.
According to people who were unlucky enough to catch them years
ago, they were not a gourmet meal and gave little or no
resistance when caught.
Their assertion that the listing was based on the best
scientific and commercial information available is poppycock.
The truth is they ignored all scientific information,
especially the scientific information provided by NDOW.
I believe that Congress has required that regulations be
written in plain English. The final rule listing of bull trout
as threatened is not written in plain English. It just as well
be written in a foreign language. It is so complicated and
disjointed.
Section 4 of the Act requires the Fish and Wildlife Service
to make a determination to list solely on the best scientific
and commercial data available. A reading of the listing
indicates the listing was political and not scientific. The
listing was for the self-gratification of the Fish and Wildlife
Service, a payoff to the Greenies, and appeasement of a
misinformed Federal judge.
The bull trout is a prehistoric fish that needs very cold
water. The fish is a remnant of the glacial period that ended
several thousand years ago. Their population will continue to
decline naturally until they are eventually extinct. This
extinction is a natural process and not caused by human threat.
The fish are a threat to themselves as they are very
carnivorous and eat each other. Just as the Endangered Species
Act would not have prevented the extinction of the dinosaur,
the Endangered Species Act cannot save the bull trout. The
Endangered Species Act and listing the bull trout as threatened
only prevents humans from enjoying the South Canyon. It limits
their camping and fishing experience as well as increasing the
fire danger to the canyon. Young families, the elderly and
handicapped are even more affected by the listing and the
restrictions that are in place.
Fish and Wildlife Service is supposed to make a
determination of the suitability of the listing based upon five
factors as stipulated in the Act. I submit to you that their
narrative describing the listing criteria is misleading, filled
with untruths and in many cases down right lies. The fish is
not threatened, the Fish and Wildlife Service has perpetuated
fraud upon the citizens of Jarbidge and Elko County, and I
think the evidence is overwhelming that the fish must be
delisted, and I think that we saw that in the presentation
here. Thank you very much.
[The prepared statement of Mr. Carpenter follows:]
Statement of Hon. John C. Carpenter, Assemblymen, Nevada State Assembly
Gentlemen,
Thank you very much for holding this hearing. We are most
appreciative of your efforts to reform the Endangered Species Act. I
believe the hearing today will give more insight into this contentious
and important subject and the need for reform.
It is well to start with a quote from the Federal Register when the
bull trout was listed as threatened. ``The Jarbidge River population
segment, composed of a single subpopulation with few individuals, is
threatened by habitat degradation from past and ongoing land management
activities such as road construction and maintenance, mining, and
grazing; interactions with non-native fishes; and incidental angler
harvest. We based this final determination on the best available
scientific and commercial information including current data and new
information received during the comment period''.
My analysis of the situation at the time of the listing is that
road construction and maintenance was minimal. There had been no mining
or grazing in the area of South Canyon for many years with the same
situation existing today. The only interaction the bull trout have with
non-native fish, are when they swim by each other. Angler harvest has
never been a problem. Who would want to catch a bull trout? According
to people who were unlucky enough to catch them years ago, they were
not a gourmet meal and give little or no resistance when caught.
Their assertion that the listing was based on best scientific and
commercial information available is poppycock. The truth is they
ignored all scientific information especially the scientific
information provided by N.D.O.W.
I believe Congress has required that regulations be written in
plain English. The final rule listing the bull trout as threatened is
not written in plain English. It just as well be written in a foreign
language. It is so complicated and disjointed.
Section 4 of the Act requires the Fish and Wildlife Service to make
a determination to list solely on the best scientific and commercial
data available. A reading of the listing indicates the listing was
political and not scientific. The listing was for the self-
gratification of the Fish and Wildlife Service, a pay off to the
Greenies and the appeasement of a misinformed Federal Judge.
The bull trout is a prehistoric fish that needs very cold water.
The fish is a remnant of the glacial period that ended several
thousands years ago. Their population will continue to decline
naturally until they are eventually extinct. This extinction is a
natural process and not caused by human threat.
The fish are a threat to themselves as they are very carnivorous
and eat each other. Just as the Endangered Species Act would have not
prevented the extinction of the dinosaur, the Endangered Species Act
cannot save the bull trout. The Endangered Species Act and the listing
of the bull trout as threatened, only prevents humans from enjoying the
South Canyon. It limits their camping and fishing experience as well as
increasing the fire danger to the Canyon. Young families, the elderly,
and handicapped are even more affected by the listing and restrictions
that are in place.
The Fish and Wildlife Service is supposed to make a determination
of the suitability of the listing based up five factors as stipulated
in the Act. I submit to you that the narrative describing the listing
criteria is misleading, filled with untruths and in many cases
downright lies. The fish is not threatened, the Fish and Wildlife
Service has perpetuated fraud upon the citizens of Jarbidge and Elko
County. The evidence is over-whelming; the fish must be de-listed.
______
Mr. Gibbons. I'm truly impressed. Both of you did that in
less than 5 minutes. Very good of you, and we will submit your
full written testimony for the record.
Let me take a few moments here to ask a couple of questions
of each of you, and I want to start with the concept that,
John, you just mentioned the fire danger up there. I know that
access in order to be able not only to improve the quality and
the condition of the forest is important up there, but access
to get up there if there is ever a fire is important as well.
As you know, Congress has recently been allocating
additional funding to state and Federal agencies for the
purpose of getting on top of our wildfires. Can you state what
impact the bull trout listing has had on your planning and your
consideration for being able to fight a forest fire if one
should occur up there?
Mr. Carpenter. Thank you. I think that that's a very good
point in that before we had a road there that was completely
passable to most vehicles, even the largest trucks that the
Forest Service and our NDEP has. But now about a mile and-a-
half of that road you cannot get up there, and we know that
when the lightning strike comes, that if you can get up there
and put that fire out in a short period of time, the chances of
it mushrooming into a real holocaust is very much limited. So
we need that access.
And I'm going to talk about the road here, we need that
access of the road to get up there to be able to put those
fires out.
Now during the last few years citizens have went up there
and repaired quite a stretch of that road. Even last Saturday,
why, we went up there and we were able to fix one area where
the new truck that the Forest Service had given to Nevada
Division of Forestry was able to get up the canyon another few
hundred more feet.
But it all helps if we can put those fires out early so
that they don't mushroom into things that we have going on in
California now. Because a fire would--it would not only destroy
Jarbidge but we probably wouldn't have to worry about the bull
trout any more because there wouldn't be any habitat left. So
it's critical that we're able to fix that road for fire
protection.
Mr. Gibbons. Brad, have you in your experience as a County
Commissioner had any consideration given to the effect of the
cost of county operations due to listings like the bull trout?
Mr. Roberts. Well, we have been--like I said, there's been
a reduction of business in the community. There were 29
campsites. There's 23 now because six are unusable. So it's
reduced the ability for campers to find sites. It's made it
more difficult for the Forest Service to manage in that they
have what they call road campsites that are in undesirable
areas.
It's not just the fire issue. People want to go up there
and enjoy the experience of the wilderness, at least the
wilderness trailhead. And you also have issues such as personal
injury or so forth in those areas. And if you have an accident
or an illness or something where people are unable to get
there, they are going to have to virtually pack them out on a
gurney for a mile or so before they can get to a vehicle. So it
has its other impacts as well.
The road is virtually--I know we weren't to talk about the
road, but they are intermixed between the listing of the fish
and the road are actually one issue, I believe, because the
fish wasn't listed for the benefit of the fish. It was listed
for the benefit of the road not to be rebuilt.
And it's just made it very difficult for the
recreationalist to use it and emergency personnel as well.
Mr. Gibbons. Let me go back if I could, Brad, and talk
about the new chlorination plant that you have got planned for
Jarbidge up there. You said it was going to cost approximately
$1 million.
Mr. Roberts. Correct.
Mr. Gibbons. How are you going to distribute the cost with
only, what did you say, 20 or so connections?
Mr. Roberts. There is 100 possible connections for the town
of Jarbidge.
Mr. Gibbons. 100. How do you distribute the cost of that
plant and the operational cost to the 100 users?
Mr. Roberts. The water rights are going to go up
dramatically for those users in that community. And the
interesting part, because we have to depreciate out that value
so that at some point in time that plant needs replaced or
maintenance or so forth, that there will be monies available to
do that in the future.
The initial work outside of the salaries and time expended
by the county in getting to this plant or designing this plant
and getting the monies and so forth, most of the money is grant
money. But it's a one-time shot. If it needs maintenance, the
town is going to have to pay for it.
And the bull trout listing has--we were ready to start work
this summer. Now we're doing additional scoping because of the
bull trout.
Mr. Gibbons. So it's added to the cost of the county.
Mr. Roberts. Added to the cost. And the interesting part is
it's a very, very, very rare occasion that we find any
contaminants in the Jarbidge water system at all. But under
Federal Clean Water Act, we have to make sure the tourists
don't get in trouble.
Mr. Gibbons. Do you have an estimate of what the individual
water user will be charged, what will be the fee, the average
fee that you can see down the road for this?
Mr. Roberts. Well, I know some of the residents are here,
and they are sitting down so I'll tell them. I would not be out
of line, I don't believe, if I said they were going to pay $150
a month for water.
Mr. Gibbons. What does the average Elko County or city of
Elko resident pay for water; do you know?
Mr. Roberts. You know, I don't know. Maybe John knows. He
is a resident.
Mr. Carpenter. I think that we pay for water service I
think $17 a month.
Mr. Gibbons. So if you live in the city you are paying $17
a month, if you live in Jarbidge you are going to pay 150, up
to 150?
Mr. Roberts. Yes.
Mr. Gibbons. If it works out that way.
Mr. Roberts. When that plant is on line and the additional
plumbing that goes with it.
Mr. Gibbons. To a lot of people up there, I'm sure that
that is going to be an awfully difficult burden to bear,
especially those that are on fixed incomes, been there for a
while, senior citizens, et cetera.
Mr. Carpenter. Jim, I would like to if I can comment a
little bit on the fishery situation up there. It used to be
that there was quite a few fishing licenses sold in the town of
Jarbidge because the NDOW stocked the river, and especially the
kids would really like to come up there, and that was their
first fishing experience for many of them. And the trout that
were planted there, why, they were easily--some of them were
easy to catch. But you know, if you're a first-time fisherman
and you catch a fish, whether it is easy or not, you get hooked
on it so you keep fishing.
But now we don't have that. The NDOW cannot stock that
stream. To me, that's a major act of the endangered species
that prevents NDOW from stocking that stream.
And so I really think that that is really doing a great
disservice, not only to the people here in Elko County but many
people come or used to come to Jarbidge for the fishing
experience, and they just don't do it any more. So you know,
it's kind of a snowball effect throughout the whole county when
NDOW is prevented from doing that.
Mr. Gibbons. I would imagine in addition to the fishing,
the camping experience, access to the wilderness area, have all
been impacted by the fact that the bull trout was listed up
there as well. The economic part that you talked about earlier,
businesses that are suffering up there because of this, John
and Brad.
Mr. Carpenter. You know that Caesar Salicchi, our County
Recorder--or our County Treasurer--he reiterated to me many
times, and Caesar is disabled from polio years ago, but going
up the South Canyon was one of the enjoyments that he looked
forward to every summer, and now he's prevented from doing
that.
And if you go up that canyon, really up to the first
campground there, it's just kind of a--the scenery remains the
same. But if you can get up there another mile or half a mile,
it opens up an entirely new vista that I think that elderly and
handicapped and young families ought to be able to enjoy, which
at the present time they cannot. So I think that's another real
detriment to what has happened in the use of that canyon.
Mr. Gibbons. Well, I don't have any more questions for each
of you. If there is something that you want to add, a final
comment you'd like to make, I'll give you that opportunity now
if you want to do so.
Mr. Carpenter. Well, I just--Congressman, I think that
there is no reason to have the fish listed. The fish is going
to do great on the habitat that's there. I think that if there
would be something that we could really do, and I think you
will hear testimony today that NDOW hasn't come up with a plan
because they don't know what else they can do other than what
they are doing now rather than close that whole canyon. And I
just don't think that that's an option, you know, because the
fish is up there in the wilderness area, and that's where it's
doing as well as it can, and certainly there's no impact up
there in the wilderness, and I just think that whatever you can
do to delist the bull trout, we will be eternally grateful
because it is something that is done that should not be there.
And you know, we have the Lahontan cutthroat trout in this
county, and we're doing a lot of things to hope it will be
delisted some day. But you know, we're fencing streams and
modifying grazing and doing all those kind of things to get the
Lahontan delisted. But there's really nothing we can do for the
bull trout because he's just there and he's doing his thing,
and we can't close that canyon down. That is not going to
happen. So we need to get the trout delisted.
Mr. Gibbons. Brad?
Mr. Roberts. I would have to agree with John. I think the
editorial in last night's paper, the guest editorial from a
native resident from Jarbidge really hit all the key points.
And you know, the fish has been a survivor. If we truly are
facing global warming, he ain't going to make it because he has
to have glacial cold water to survive, and all the trees in the
world are not going to make that cold enough for him.
As being a survivor, at the turn of the century, there's as
many as 400,000 head of sheep running in that country. There is
none now. The streams, there is some records telling of the
Jarbidge River being clogged with sawdust from the sawmills up
there, cutting the timber for the mines, and there's none of
that now. And there are stories of the miners dumping chemicals
in the river of toxic levels. There is none of that now.
And the fish is still there. But his worst demise is
himself. There are other fish in the stream, he breeds with
them, and those offspring are, and you may hear this from NDOW,
but they are infertile and they eat their young. So how are you
going to help a fish that there ain't any kind of critter that
does that?
So anything you can do to bring this fish off the list
would certainly help the overall economy and the recreational
opportunities for all residents and tourists alike in the
Jarbidge area.
Mr. Gibbons. Well, I want to thank both of you specifically
because when I came here, I made my first, very first opening
statement the farther you get from Washington, D.C., the more
common sense you can have in a discussion, and both of you have
proved that point exactly. You came here with good common sense
remarks, not a lot of emotion, based on facts, presented us
with information that we need to hear and we need to have on
our record that will help us move forward with this hearing
that will help us move forward with the legislation as well. I
wanted to thank each of you for being here today, and with that
I'll excuse you and call up our second panel.
Our second panel is going to be Mr. Robert Williams, Field
Supervisor for the Nevada State Office of the U.S. Fish and
Wildlife Service under the Department of Interior, and Mr.
Robert Vaught, Forest Supervisor, Humboldt-Toiyabe National
Forest, U.S. Forest Service, Department of Agriculture. I have
to be careful because if I say Bob, I have to know which Bob
I'm talking to.
Mr. Williams. Just look at us and we'll know which one.
Mr. Gibbons. I'll put Mr. instead of Bob.
I'd like to welcome both of you to this hearing. Both of
you have been in this room on this issue before at a hearing,
and appreciate your presence again today.
I will begin with Mr. Williams, U.S. Fish and Wildlife
Service. If you can, summarize your testimony. We're happy to
put your full and complete written testimony into the record.
We will begin with you. Welcome, Mr. Williams. The floor is
yours.
STATEMENT OF ROBERT WILLIAMS, FIELD SUPERVISOR, U.S. FISH AND
WILDLIFE SERVICE
Mr. Williams. Mr. Chairman, thank you for the opportunity
to meet again and to discuss the listing of the Jarbidge River
population bull trout. As you know, my name is Bob Williams. I
am the Field Supervisor for the Fish and Wildlife Service here
in the State of Nevada.
You have requested that the Service address three questions
specifically: Was the listing of the Jarbidge bull trout
population based solely on the best available science and
commercial data? how does the bull trout listing meet the
Endangered Species Act criteria? and what information would we
need to delist the species?
I have submitted my testimony for the record.
For the past several months there's been much discussion
about the use of good science in the Service decisionmaking.
Given the impact that our resource management decisions can
have on communities and individuals, species conservation
decisions must be based on the best available science and
commercial data.
Our data and scientific information must meet the highest
possible ethical and professional standards. This is something
I have taken very seriously in my 26-year career with the
Department of Interior and working for the Service.
Assistant Secretary Manson testified in March before this
Committee addressing the issue of science as it relates to the
Fish and Wildlife Service. I think his comments are worth
restating here for the record.
He said that first there is no monopoly on good science.
The Department must make or must take a broad net, or cast a
broad net--excuse me--to take advantage of independent
scientific expertise. We believe that this will ensure that our
decisions are based on the best available science, not just on
one group's interpretation of the science.
We must also acknowledge that science is not exact and that
even experts will differ in their opinions. Where there are
differing interpretations of the science behind our decisions,
we must provide opportunity both by the Department scientists
and stakeholders to air their differences and work through
them.
The Service has been repeatedly accused of listing the bull
trout as a way to stop the South Canyon Road. This is just not
the case. And I think the chronology of events that you
outlined earlier indicate that.
The bull trout listing actually began back in 1985. And as
you know, and as you indicated, much of the history of the
listing of the bull trout was as a result of court ordered
decisions.
The Service believed back in the early 1990's based on the
population survey data and information that we had at that
time, both real data and empirical data on the species and the
habitat, that the bull trout was warranted for listing but
precluded from listing because of other higher priorities. In
1992, the Service received a petition to list the trout as
endangered throughout its range.
From 1992 to 1997, and after numerous motions, the Service
did list the five distinct populations of bull trout in 1997
and for the Jarbidge 1998. While the lawsuits may have pushed
the listing, the decisions to list the species, in our opinion,
was based on the best available science collected across the
range of the species including the information that we had on
the Jarbidge for this particular listing in the Jarbidge EPS.
As it relates to your second question, I would like to
briefly go through the five listing factors, and some of the
information that we presented. A more detailed again outline is
in my testimony. As you indicated, the first factor as it
relates to listing is the present threatened destruction,
modification or curtailment of habitat or range. We believed
based on the information that past livestock, mining and other
factors affecting the functionality of the stream significantly
was affecting the current population of bull trout. Road
construction and maintenance practices further evidenced the
degradation of the stream and the habitat.
The second factor is overutilization for commercial,
recreation, scientific or educational purposes. There was an
angling limit of up to 10 bull trout per day until the species
was listed in 1998. We believe that was significantly affecting
the species.
Even with the catch and release program now in place, and
with angler difficulty in identifying species, bull trout are
likely still being taken in the system. A recent bull trout
protein incident was reported in Idaho in the watershed
indicating the taking continues today.
The third factor is disease and predation, which as you
indicated is not a factor, or at least we don't believe it's a
factor.
The fourth factor is inadequate protection mechanisms, and
again, we believe that the watershed is relatively remote,
access is difficult for much of the year, and there's been
damaging activities occurring that have gone unchecked, such as
road construction and maintenance, river channelization,
riparian vegetation removal, firewood collection, instream
woody debris removal, and unsustainable grazing.
The last factor is basically human caused or other human
caused related activities. And one of the things that we
identified in the listing was the nonnative species.
In 1998, we published a proposed rule to list the bull
trout, again, using all the available information that we had
at that time.
We notified the public of the proposal through the media
and sent out over 800 letters to individuals. We held public
meetings for the rule for 4 months. We received 23 comments
pertaining to the population. We solicited formal, scientific,
peer review, a process within our listing policy. We had one
peer reviewer who did come back and basically stated that
listing was the conservative and appropriate decision.
The last question that you asked of us was related to
delisting criteria. The specific delisting criteria we have not
been able to identify or haven't identified yet, but we are
early in the process. We have identified a bull trout recovery
team for this particular area and that we are working with the
Nevada Division of Wildlife, the Idaho Game and Fish, Duck
Valley Paiute-Shoshone Tribes, BLM, the Forest Service and
ourselves, and the bull trout team has met for the first time
in December and is continuing to develop a plan.
We hope to have a plan sometime by this fall. December I
think is the target date.
Delisting will occur when the Jarbidge River population
meets the recovery criteria that will ensure the species and
its habitat are protected and can sustain itself. Consistent
population monitoring using statistical sound techniques will
be critical to determine the recovery criteria and when
delisting can occur.
Mr. Chairman, I appreciate your time, and this concludes my
testimony.
[The prepared statement of Mr. Williams follows:]
Statement of Robert D. Williams, Field Supervisor, Nevada Fish and
Wildlife Office, U.S. Fish and Wildlife Service, Department of the
Interior
Mr. Chairman, thank you for the opportunity to appear before you
today to discuss the listing of the Jarbidge River population of bull
trout. My name is Bob Williams, Field Supervisor for the U.S. Fish and
Wildlife Service's (Service) Nevada Fish and Wildlife Office in Reno.
For the past several months, there has been much discussion about
the use of good science in the Service's decision-making. Given the
impact that our resource management decisions can have on communities
and individuals, the species conservation decisions we make must be
based on the best available science. Our data and scientific
information must meet the highest possible ethical and professional
standards. This is something I have taken very seriously throughout my
26 year career, and I know that FWS Director Steve Williams continues
to improve the use of sound science within the Fish and Wildlife
Service.
Craig Manson, Assistant Secretary for Fish and Wildlife and Parks,
testified in March 2002 before this Committee about issues related to
the use of good science by the Service as it carries out its
responsibilities. His comments are worth reiterating here: there is no
monopoly on good science. The Department must cast a broad net to take
advantage of independent scientific expertise. We believe that this
will ensure that our decisions are based on the best available science,
not just one group's, or another's, interpretation of the science. We
must also acknowledge that science is not exact, and that even expert
opinions can differ. Where there are differing interpretations of the
science behind our decisions, we must provide opportunities for both
Department scientists and stakeholders to air those differences and,
wherever possible, resolve them. It must be an open process.
In your invitation to appear today, you asked us to ponder several
questions. Was the listing of the Jarbidge River bull trout population
based solely on the best available scientific and commercial data? How
does the Jarbidge bull trout listing meet (or not meet) Endangered
Species Act listing criteria? And, what information would be needed to
delist? I would like to provide the Service's response to those
questions.
Bull trout listing: science
We believe that the addition of the Jarbidge River bull trout
population to the Endangered Species list was based solely on the best
available scientific and commercial data. Section 4(b) of the
Endangered Species Act of 1973, as amended (ESA), requires that
determinations of endangered and threatened species be based solely on
the best scientific and commercial data available after conducting a
review of the status of the species and after taking into account
efforts by states or foreign countries to protect the species. The ESA
also requires that consideration be given to listing species which have
been identified as in danger of extinction, or likely to become so
within the foreseeable future, by any state or foreign country's
conservation agency.
In 1985, the Service first included bull trout in a public Notice
of Review (50 Federal Register 37958) identifying possible candidates
for future listings under the ESA. These candidate species were
typically added to the Service's public notices based upon concerns
expressed by biologists from State and Federal agencies, universities,
and other knowledgeable individuals from all over the country, and data
in local Service office files. The Service maintained bull trout on a
list of potential candidate species until 1997.
During this time period, the Service was also petitioned to list
the bull trout as endangered. The Service's findings in response to the
petition initiated a long series of legal actions and court decisions.
As a result of a court order, the Service proposed to list the Klamath
and Columbia river populations of bull trout on June 13, 1997 (62
Federal Register 32268), and the Coastal-Puget Sound, Jarbidge River,
and St. Mary-Belly River populations on June 10, 1998 (63 Federal
Register 31693).
The amount of research, surveys, and reports on bull trout
increased greatly during the 1990s, most likely due to all the bull
trout-related legal actions and the increasing potential for a listing
of the species. For example in 1990, the Nevada Division of Wildlife
(NDOW) gathered historical agency survey data and proposed future
species management activities in a draft bull trout management plan
report (Federal Aid Project No. F-20-26, Job No. 207.4). The Service
also funded NDOW to perform a survey in 1993 to gather additional data
on the Jarbidge River bull trout population, which was documented in a
1994 NDOW report. In 1999, NDOW organized a new Jarbidge River bull
trout survey.
Using data from the 1990 and 1994 NDOW reports and other scientific
information available at the time, including the 1999 survey data, the
Service determined that the Jarbidge River population was small,
isolated, and vulnerable to extinction. We also identified numerous
potential threats to the population including habitat degradation from
past and ongoing activities including mining, road construction and
maintenance, grazing, angling, competition with stocked fish, and
unpredictable natural events such as the debris torrents that occurred
in the 1995 flood in the Jarbidge River Canyon. Based on these data,
the Service listed the species as threatened on April 8, 1999 (64
Federal Register 17111).
Bull trout listing: listing criteria and threats to the species
Section 4(a) of the ESA sets forth the five factors upon which
endangered or threatened status is conferred. The five factors are: 1)
the present or threatened destruction, modification, or curtailment of
its habitat or range; 2) overutilization for commercial, recreational,
scientific, or educational purposes; 3) disease and predation; 4) the
inadequacy of existing regulatory mechanisms; and 5) other natural or
manmade factors affecting its continued existence. Based on the best
available information, the Service determined that the Jarbidge River
bull trout listing was warranted given the current threats to its
population.
I will now review the application of these factors to the Jarbidge
River bull trout population, which were discussed in detail in the
April 1999 Federal Register listing decision.
1) The present or threatened destruction, modification, or curtailment
of its habitat or range.
Bull trout historically occurred throughout much of the Snake River
Basin. In addition to more subtle habitat changes such as increasing
stream temperatures and sedimentation, genetic connectivity among bull
trout populations in the basin was gradually lost due to dam
construction, water diversions for irrigation, and animal grazing.
Water quality concerns were also associated with streamside mine
tailings, piles, and mine shaft drainage. The remaining Jarbidge River
population is now isolated and located over 150 river miles from other
bull trout populations. Due to its current restricted distribution and
low numbers of fish, the Jarbidge River population is susceptible to a
variety of threats.
2) Overutilization for commercial, recreational, scientific, or
educational purposes.
The Jarbidge River system has been heavily fished, dating back to
the 1930s. Decades of non-native trout stocking by both Idaho and
Nevada encouraged increased angling pressure in bull trout habitat.
Idaho stopped stocking trout in 1990, and Nevada's last stocking was in
1998. A 1990 NDOW report specifically stated concerns for the bull
trout population because of angling pressure and the removal of larger
bull trout (6-12 inches) from the system, possibly before they were old
enough to reproduce for the first time. Angler harvest was considered
by NDOW to be a likely ``primary factor in the low densities of bull
trout in the East and West forks of the Jarbidge River.''
Harvest is considered a threat to both resident and migratory forms
of bull trout. Migratory fish are at greater risk because of their
lower numbers, desirable larger size and higher visibility to anglers.
Anglers are known to have difficulty identifying bull trout, so
unintentional harvest of bull trout is likely still occurring despite
angler education efforts. Nevada bull trout fishing regulations were
changed in 1998, and it is now a catch and release program. Limits on
other trout (native redbands and residual stocked rainbows) and
mountain whitefish are now 5 and 10 fish, respectively, which still
allows for substantial fishing pressure and potential repeated bull
trout captures. To date, bull trout monitoring has not been conducted
long enough to allow for detection of improvements in the population.
Idaho established a two trout limit for the Jarbidge River watershed in
1992, and prohibited harvest of bull trout entirely in 1995.
3) Disease and predation.
Disease and predation have not been documented as factors affecting
the survival of bull trout in the Jarbidge River watershed.
4) The inadequacy of existing regulatory mechanisms.
Existing regulatory mechanisms protecting streams, stream channels,
riparian areas, and floodplains are either inadequate to protect bull
trout habitat or are not sufficiently enforced. Activities that damage
habitat are frequently undetected because the Jarbidge River watershed
is relatively remote and access is difficult for much of the year.
Examples of such activities might include road construction and
maintenance practices, river channelization, riparian vegetation
removal, firewood collection, stream bank stabilization, instream large
woody debris removal, and unsustainable grazing practices, among
others.
5) Other natural or manmade factors affecting its continued existence.
Natural and manmade factors affecting the continued existence of
bull trout include introductions of non-native species (catchable-size
rainbow trout) that compete with and may prey upon bull trout, drought,
and debris torrents (such as the 1995 event on the West Fork of the
Jarbidge River).
These five listing factors were discussed at length in our proposed
rule to list the bull trout as an endangered species. The Service
requested input on these factors from the public, agencies, scientific
community, industry, and other interested parties. We notified over 800
individuals about our proposed rule, including private citizens; State
and Federal agencies; Federal, State, county and city elected
officials; and local media. We also published announcements of the
proposed rule in local newspapers, including the Elko Daily Free Press
here in Nevada. The Service held four public hearings, including one in
Jackpot, Nevada, during July 1998. The public comment period was open
for 4 months. We received 52 public comments on the proposed rule, and
of these, 23 pertained to the Jarbidge River population. The majority
of the comments supported the listing, with seven comments opposing
listing. In the Service's view, few comments provided meaningful new
data to consider with respect to the threats discussed in the proposed
listing decision.
During the public comment period, we also solicited formal
scientific peer review of our proposed rule in accordance with our
Interagency Cooperative Policy for Peer Review in Endangered Species
Act Activities (July 1, 1994; 59 FR 34270). We solicited six
individuals with expertise in bull trout biology and salmonid ecology
whose affiliations included academia and Federal, State, and Canadian
Provincial agencies to review the proposed rule within the public
comment period. Only one of the six peer reviewers responded to our
official request. That reviewer stated that listing was the
``conservative and appropriate decision.'' Another recognized bull
trout expert from academia (not an official peer reviewer) submitted
public comments strongly supporting the Jarbidge River bull trout
listing.
As part of the administrative record we provided the results of an
independent peer review of Jarbidge River bull trout data and
population status presented in the 1999 NDOW Report. The peer review
was performed by two fisheries scientists selected by the Western
Division of the American Fisheries Society (AFS). The AFS peer review
(reviewers remained anonymous to ensure impartiality) substantially
supported the decision to list the species. The conclusion of our
official peer review of the listing decision and the AFS peer review of
the NDOW report were consistent with our decision to move forward with
the listing.
In July 1998, with the Jarbidge River bull trout already proposed
for listing, Elko County began reconstructing the South Canyon Road in
the midst of known bull trout habitat. Potential direct and indirect
impacts in the West Fork of the Jarbidge River included the harm and
harassment of juvenile and adult bull trout; disruption or prevention
of bull trout migration and spawning; alteration of stream flow and
temperature; loss of riparian vegetation; and increased sediment
transport. This combination of activities had the potential to affect
the future survival and recovery of the Jarbidge River population. For
these reasons, the Service temporarily emergency listed the Jarbidge
River population as endangered on August 11, 1998 (63 Federal Register
42757). The emergency listing lasted for 240 days.
On April 8, 1999, we published a final rule listing the Jarbidge
River population as threatened, as we had originally proposed (64
Federal Register 17110). Listing the bull trout as threatened rather
than endangered was possible due to habitat restoration in the South
Canyon Road area and other beneficial projects that were implemented by
Federal and State agencies, including habitat management improvements
and the elimination of rainbow trout stocking in Nevada.
Along with conferring the threatened status on the bull trout, the
final listing rule included a ``special rule'', under section 4(d) of
the ESA. The rule allowed for incidental take of bull trout in the
Jarbidge River population for educational, conservation or scientific
purposes, as well as by recreational fishing for 2 years (until April
9, 2001). To extend the special rule beyond the original 2 years, the
4(d) rule required the States of Idaho and Nevada to develop a
conservation and management plan for bull trout in the Jarbidge River.
The extension would provide continued legal angling opportunities for
the public in the Jarbidge River. The Service has been advised by NDOW
that the management plan is close to completion.
Bull trout: delisting
At present, the requirements for delisting have not been
identified. Several years ago a Bull Trout Recovery Team was assembled.
Representatives from the States of Idaho, Montana, Nevada, Oregon and
Washington, Upper Columbia River United Tribes, and Service offices in
five states were asked to participate. This recovery oversight team has
prepared a range-wide draft bull trout recovery plan which will be
published for public review this fall (November 2002).
Recovery and delisting of each of the five listed bull trout
populations can occur independent of each other. A Recovery Unit Team
has been established to develop a recovery plan specifically for the
Jarbidge River population and to identify specific delisting criteria.
Similar to the larger recovery oversight team, this local recovery team
includes representatives from the States (including NDOW and Idaho
Department of Fish and Game); Tribes (Duck Valley Paiute-Shoshone
Tribes' Habitat, Parks, Fish and Game Division); and Federal agencies
(Bureau of Land Management, U.S. Forest Service , and the Service). The
Team met for the first time in December 2001 and should have a draft
recovery plan by the end of this year (December 2002).
This local team is tasked with defining bull trout recovery for the
Jarbidge River including specific objectives and recovery criteria for
delisting, reviewing factors affecting the species, identifying site-
specific recovery actions, and estimating recovery costs. NDOW has
participated in the development of the recovery plan and is one of many
stakeholders. Participation by the States and other local stakeholders
is vital in order for the recovery effort to be successful. The draft
recovery plan will be available for public review, and we hope to
receive substantial public input from stakeholders, including the
residents of Jarbidge and the Elko County Board of Commissioners. All
comments received will be considered by the local recovery team in
finalizing the recovery plan. Our goal is to have the final recovery
plan for the Jarbidge River, Coastal Puget Sound, and St. Mary-Belly
River populations by 2004. We hope to finalize the range-wide plan by
2003.
Delisting will occur when the Jarbidge River population meets the
recovery criteria that are developed by the local recovery unit team
and identified in the recovery plan. These recovery criteria will
address the following population characteristics within the recovery
unit: 1) the distribution of bull trout in existing and potential local
populations (local populations are groups of bull trout that spawn
within a particular stream or portion of a stream system); 2) the
estimated abundance of adult bull trout, expressed as either a point
estimate or range of individuals; 3) the presence of stable or
increasing trends for adult bull trout abundance; and 4) the
restoration of fish passage at any barriers identified as inhibiting
recovery. Consistent population monitoring using statistically sound
techniques will be required to determine when the recovery criteria
have been met and delisting can occur.
Since the 1999 listing, the Service has participated in conducting
additional surveys of bull trout and bull trout habitat in the Jarbidge
River system with NDOW, IDFG, BLM, and the USFS. This work has occurred
throughout the watershed on the East and West forks of the Jarbidge
River, Dave Creek, Deer Creek, Jack Creek, Pine Creek, and Slide Creek.
Probably the most significant findings from this work is the
documentation of bull trout spawning in Dave Creek in an area with
substantial habitat restoration potential, and the capture of five
potential migratory bull trout in fish traps on the lower East and West
forks by IDFG. Both of these events are extremely encouraging for the
future success of the species recovery efforts in the watershed.
Mr. Chairman, this concludes my testimony. I will be happy to
answer any questions that you or other members of the Subcommittee may
have. Again, I thank you for giving the Fish and Wildlife Service the
opportunity to testify.
______
Mr. Gibbons. Thank you very much, Mr. Williams.
Mr. Vaught, welcome to the Committee. Happy to have you.
STATEMENT OF ROBERT L. VAUGHT, FOREST SUPERVISOR, HUMBOLDT-
TOIYABE NATIONAL FOREST
Mr. Vaught. Thank you very much. I appreciate being here,
Congressman Gibbons.
I would like to talk in more or less general about the
Forest Service management issues within the Jarbidge drainage.
That is located on the Jarbidge Ranger District on the
Humboldt-Toiyabe National Forest.
My name is Bob Vaught. I'm the Forest Supervisor for the
Humboldt-Toiyabe National Forest. And I appreciate your
interest and your willingness to address this topic.
I think that it is one of the more contentious issues
because of the strong disagreements associated with the entire
Jarbidge road issue, and that dealing with it effectively is
important in order to ultimately effectively deal with the road
issue. So this is important, and I appreciate your interest in
allowing us to be here today.
I defer to the Fish and Wildlife Service considering
listing issues specifically. The Forest Service role and
responsibility is to manage habitat and resources that are
located on the National Forest. We also have a very specific
role to work with the community and the people in dealing with
those resource issues so that both the community, people and
resources are all effectively and appropriately dealt with in
terms of our decisionmaking.
There are a number of efforts that have been underway for
many decades, including recently, that the Forest Service has
been involved with in the Jarbidge drainage. I would like to
briefly mention those because I do think it is important to the
discussion. Some have already been mentioned. Some are
difficult issues such as the water effort that is underway to
develop a water system for the community that meets state and
Federal requirements.
The sanitary landfill issue which within the recent past
has been worked on very diligently by those that were involved
in that. We have been involved in working on grazing issues up
there. We have been involved in working on reclamation of
mining issues up there. The Forest Service has been very
involved in road work, bridge work, culvert work, bridge and
culvert replacement, bridge and culvert maintenance which have
been essential for the community.
So we have a long history of working with the community to
try to resolve these issues.
Personally as a professional of nearly 25 years in the
Forest Service, it is of great consternation to me when these
kinds of things occur in terms of the controversy associated
with this issue, that essentially stop good decisionmaking from
going on and from getting to resolution. And I am hopeful that
we will soon be able to do that.
We're all familiar with the intense controversy associated
with this. As you also well know, in April of 2001, there was a
settlement agreement that was signed which outlines the factors
which allow the parties that have been involved in this to work
together in a positive way toward resolution and ultimate
decision about whether and how and where the road can be
rebuilt.
One of the things that that settlement agreement does is it
provides Elko County the opportunity to submit to the Forest
Service a plan that they support for road development. The
Forest Service has now received that proposal, and in March of
this year we submitted and issued a notice of intent to do an
environmental impact statement to work on resolution of this
issue.
An environmental impact statement will finally be issued we
hope about a year from now, hopefully just a little bit sooner
than that, and according to the laws under which we operate, we
will of course consult with the U.S. Fish and Wildlife Service
in that decision.
In conclusion, the Forest Service remains committed to
working with the county, to working with the people of
Jarbidge, to working with the signatories of the settlement
agreement, to seek resolution to this issue. I certainly
support the efforts that we nationally are working on to try to
make the environmental--the ESA, the Endangered Species Act, a
document that works for people and works for the West. Until
there are changes to that, we will do everything we can to move
forward with the decision in consultation with the county that
is going to be one that is a wise decision and is good for the
people and is good for the resources.
Thank you very much for the opportunity to be here, and as
always, would be very open to any questions that you have.
[The prepared statement of Mr. Vaught follows:]
Statement of Robert L. Vaught, Forest Supervisor, Humboldt-Toiyabe
National Forest, USDA Forest Service
Thank you for the opportunity to be with you today to discuss the
management of the Jarbidge watershed in the Jarbidge Ranger District of
the Humboldt-Toiyabe National Forest. My name is Bob Vaught. I am the
Forest Supervisor for the Humboldt-Toiyabe National Forest.
I will defer to the Fish and Wildlife Service to address your
questions concerning the listing of the bull trout. Today, I will focus
my comments on the management of National Forest System lands in the
Jarbidge watershed, home to the southern most population of bull trout.
I will also comment on the Forest Service's efforts to work with Elko
County and local individuals concerned about the management of the
National Forest.
Prior to the 1999 listing of the bull trout as a threatened species
under the Endangered Species Act, the Forest Service had undertaken
several management actions aimed at improving the aquatic habitat in
the Jarbidge River watershed. These actions included:
1. LImplementation of vegetative utilization standards on all nine
grazing allotments within Jarbidge River sub-watersheds;
2. LReplacement of a culvert with a bridge to restore fish passage
between the West Fork of the Jarbidge River and Jack Creek;
3. LFencing of several upland springs and portions of river and
creek bottoms to protect riparian areas from the impacts of cattle;
4. LImplementation of reclamation and erosion control measures for
ceased mining operations; and
5. LCollaboration with Elko County to close the Jarbidge municipal
landfill and issuance to the County of a special use permit for a
transfer station that comports with regulatory requirements of the
Nevada Division of Environmental Protection.
In 1995, a high water event in the Jarbidge River canyon washed out
portions of the South Canyon Road and caused the river to cut a new
channel where the road once ran. This event stimulated much discussion
concerning the future of the road, access to portions of the National
Forest and the general health of the aquatic ecosystem.
In 1997, the Regional Forester reviewed on appeal a decision to
rebuild the road and remanded the decision to the Humboldt-Toiyabe
National Forest for further analysis on the effects to the bull trout
and other aquatic species from road construction and from possible
future road failure. The Fish and Wildlife Service in April 1999 listed
the bull trout as a threatened species. The listing requires the Forest
Service to consult with the Fish and Wildlife Service on agency action,
such as construction or reconstruction.
In November 1999, when the House Committee on Resources
Subcommittee on Forests and Forest Health conducted a field hearing in
Elko, the United States and Elko County were engaged in discussions
concerning the fate of a washed-out portion of the South Canyon Road
along the West Fork of the Jarbidge River. Today, following a federal
district court settlement agreement signed in April, 2001, I am please
to inform you Mr. Chairman that the Forest Service and Elko County are
diligently working together to implement the provisions of this
agreement.
The Settlement Agreement spells out the working relationship
between the parties to the Agreement: John Carpenter, Elko County, the
State of Nevada's Division of Environmental Protection, and the
agencies of the United States, the Fish and Wildlife Service, the
Environmental Protection Agency, and USDA Forest Service. The Agreement
provides Elko County with the opportunity to submit a proposal to the
Forest Service to reestablish the South Canyon Road and requires the
completion of certain watershed improvement projects. The Agreement
further provides that the Forest Service study the road reconstruction
and watershed projects following established agency procedures for
environmental analysis.
Let me give you an example of how committed Elko County and the
Forest Service are to working together. A portion of the Settlement
Agreement identifies the need for interim work on the South Canyon Road
to prevent erosion. Last Saturday, citizen volunteers, Elko County
Commissioners and staff, and Forest Service workers, nearly 20 people
in all, worked side-by-side on a short-term measure to armor stream
banks in an effort that will reduce the amount of sediment reaching the
West Fork of the Jarbidge River.
During the fall of 2001, contract biologists, hydrologists and soil
scientist, collected data on the condition of the Jarbidge watershed.
These inventories represent the most recent and complete data available
to the Forest Service and will be used during the environmental
analysis. In March 2002, the Forest Service issued a Notice of Intent
to evaluate the effects of several alternatives for road
reconstruction, and watershed and aquatic habitat improvement projects.
A series of public meetings were held this spring and work has begun on
a draft Environmental Impact Statement. Elko County as a cooperating
agency is working closely with the Forest Service in the environmental
analysis process. They submitted a proposal for road reconstruction to
the Forest Service this past June. A Final Environmental Impact
Statement expected next spring.
As required by law (the National Environmental Policy Act, the
National Forest Management Act, and the Endangered Species Act, and
others) and regulations, the Forest Service will consult with the Fish
and Wildlife Service to guarantee that any action in the South Jarbidge
Canyon will not jeopardize the continued existence of the listed bull
trout. The Forest Service asked the Fish and Wildlife Service to be a
cooperating agency during the environmental analysis process. The
Service agreed. Working closely in this manner will ensure the Service
fully understands the project and potential impacts to the listed
species, and allow them to provide input to the alternatives to be
evaluated.
In conclusion, the Forest Service remains committed to working with
the cooperating agencies and keeping the interested publics informed of
the progress we are making on the environmental analysis and we are
also committed to following the laws and regulations governing the
environmental analysis.
Mr. Chairman, this concludes my statement. I will be happy to
answer any questions you may have.
______
Mr. Gibbons. Thank you. Thank you, Mr. Vaught.
Both of you provided I think all of us an important
statement, function of your agency and the purpose why you have
taken on this issue, and I think it's important for everyone
here to hear that as well.
Of course, my questions will be focused I believe primarily
to Mr. Williams. Should I say Dr. Williams? You do have a
Ph.D.?
Mr. Williams. No, I do not.
Mr. Gibbons. You do not. Are you a biologist?
Mr. Williams. Yes, I have a Master's Degree in fishery
biology.
Mr. Gibbons. So when we talk about fish, you know a lot
about them.
Mr. Williams. I used to know more about them. Being a
manager. The science has continued.
Mr. Gibbons. Let me go back, because the issue gets back to
the whole purpose why we're here what the criteria was that we
were looking at, you were looking at when you decided to list
this as a threatened species, and as I listened to your
statement, you kept using the term we believe. What data were
you using at that point?
Mr. Williams. I think for the--and we tried to in my
written testimony outline a lot more of the detail. If I can--
and I have not specifically tracked all the data that was used
in the listing decisions that were made in '94--.
Mr. Gibbons. Let me ask the question, did the Forest
Service itself, U.S.--I mean not the Forest Service--Fish and
Wildlife Service itself collect the data? Did it study it with
its own biologist?
Mr. Williams. No, and that is where I was going to go. It
is my understanding in the '94 era, 1994, is when the Fish and
Wildlife Service was looking at the species specifically
rangewide and trying to make a determination of whether it was
warranted, based on the first petitions, and that is when we
basically said from all the information we collected, and most
of it came from academia, it came from states, tribes, whoever
basically was on the ground and managing the species, those
were the data that we used and looked at the species rangewide,
made the determination that it wasn't warranted for listing
rangewide. But within the terminus of the United States or the
lower 48, we said that it was warranted based on the
information from the states, from the tribal entities across
the range in the lower 48, that it was warranted because of the
status of the species and because of the habitat, modifications
or changes or destruction, things that had gone on across the
range.
Mr. Gibbons. Let me summarize because the law I think is
very clear. It says decisions to list a species must be made,
quote, solely on the basis of best scientific and commercially
available data. And in 1999, you made that decision to list the
bull trout in Jarbidge based on the best scientific and
commercially available data; is that correct?
Mr. Williams. That is correct. And that data did include
the data from the Division of Wildlife. From their 1990 report,
their 1994 report, and even their raw data or their preliminary
data that we had and were able to talk to them about that
wasn't published until after the final rule came out in 1999.
So we were in communication with them.
Mr. Gibbons. OK. In 1994, though, your agency published a
finding that a listing of the bull trout was warranted but
precluded by higher priority listings.
Mr. Williams. That is correct.
Mr. Gibbons. Was your proposed rule to list the Columbian
Klamath population, I presume the bull trout, in 1997 a
response to the '96 Oregon District Court order, or was it
based on the basis of best scientific and commercial data?
Mr. Williams. I think--well, on the best available
information, the best available scientific information at the
time. But I think where the Court came in and said your
decision to put it at a priority 9 is not appropriate given
what the plaintiffs had come to us with with maybe new
information or other information saying, we want this species
listed now. And so the Court directed us to reconsider the
information and any new information, and that's where we
basically made and agreed to go forward with the Columbia and
Klamath.
Mr. Gibbons. That was '97.
Mr. Williams. Yes.
Mr. Gibbons. The Jarbidge population was not proposed to be
listed until June of '98, after the Oregon District Court order
of December of '97 ordered your agency to reconsider the
proposed rule we just talked about, and you said the reason the
Jarbidge bull trout was not proposed to be listed in your '97
rule was that the Court order prohibited using data not part of
the '94 record; is that correct?
Mr. Williams. Right. But in March of '97, we were
redirected to look at all of the--look at the '94 record and
any new information. That's what the March '97 directive from
the Court was.
Mr. Gibbons. So the information, though, on the Jarbidge
trout was not available to you prior to '94, was it?
Mr. Williams. Yes, it was. We had Jarbidge information in
'90 and the '94 report.
Mr. Gibbons. Well, I'm reading the Court record, and it
indicated it was not part of the '94 record. Did you get
information after '94 that tipped the scales then in listing
this species?
Mr. Williams. From March of '97 until we came out with the
proposed rule is when we were allowed to look at all the
available information and do an analysis of threats, and
that's--and we basically were directed--based on that
information, we made another finding that it was warranted for
us to list Jarbidge, Puget Sound and St. Mary Belly.
Mr. Gibbons. But as you heard the two gentlemen earlier,
there have been no grazing, overgrazing in there for decades.
Road construction had been going on for a number of years, but
there was no data on what the effect of the road construction
had been. Overutilization, whether by recreation, et cetera,
you didn't have data that specified that.
You came in and you used hypothetical or opinions because
that's what you said, you said we believe rather than we
studied the data on it. So you took data that wasn't scientific
or commercial and posed that with opinion data, did you not?
Mr. Williams. Yes. But if I could add. I think--.
Mr. Gibbons. I'm not trying to drag you through this
kicking and screaming. It's OK to say yes.
Mr. Williams. But I think it's important for the record for
you to understand the process that we went through, if you
will, in terms of the analyses. And while we may not have had
the exact amount of sediment, the tonnage of sediment that goes
in from the sidecasting of the road maintenance activity, we
know from other streams and other areas that that is a problem
in terms of sedimentation on spawning areas. That is known
within the scientific community of people studying trout. So
that in and of itself becomes a threat.
While we don't have again the specific amount that goes in
on the Jarbidge and any particular bend in the river, we know
that road maintenance activities is affecting, can affect
reproduction, can affect the species. So that becomes a threat.
The fact that it is an ongoing activity, that becomes a
threat in terms of our analysis and the way we present it.
Mr. Gibbons. And if you knew about any typical road
construction that proposed the threat to the species, you would
take action to stop it after the listing as a threatened
species; correct?
Mr. Williams. Correct. I think that that's really the
impetus of why we moved it in terms of the emergency listing.
Mr. Gibbons. Let me ask this question. Did your agency
participate with the Forest Service in the removal of the road?
In other words, the reshaping and contouring of the original
existing road structure after the listing of threatened?
Mr. Williams. Yes.
Mr. Gibbons. And you recognized then the activities that
took place by that construction crew during that time and its
effect on the bull trout?
Mr. Williams. Yes.
Mr. Gibbons. Because we have seen a lot of pictures where
that construction crew had its equipment in the middle of the
stream. It was using heavy equipment, diversions, had bales of
hay and plastic diverting the canal and the streambed. But
that's OK.
Mr. Williams. We went through what we called section 7
consultation. We worked with the Forest Service and experts in
terms of stream and river morphology to make sure that the
activities that were undertaken minimized effects to the
species, minimized effects to the stream, while trying to
reconfigure and put the stream back into a healthy state. So
under that kind of a scenario, yes, we did basically concur
that those practices and that activity was consistent with
conservation of the species.
Mr. Gibbons. I guess it's all a relative portion. When you
have a bulldozer sitting in the middle of a stream, whether or
not that's healthy for a fish species is a question we can
debate, and we won't get into that now.
Let me ask, go on to this. How many of the U.S. Fish and
Wildlife Service listings, 1200 we have cited in here, have had
the luxury of going through a rigorous scientific and
commercially available data analysis prior to listing?
Mr. Williams. I think all of them to the same extent that
we went through for the listing of the bull trout. Many species
are afforded a more thorough analysis, if you will, if there is
more available information, we know more about the species, we
know more about the direct threats. There are a host of species
out there that we have listed with not a lot of information.
But again, using the process of a surrogate species or closely
related species where we know where certain things can be
affecting the overall dynamics of population structure.
In terms of the analysis, we do have a Fish and Wildlife
handbook. We have classes basically where we send young
biologists to basically teach them and walk them through the
mental processes with using all the available information that
they can to put together a sound listing package.
Mr. Gibbons. I think you saw the recommendations and the
studies that have been done by other scientists who were
specialists in fisheries and extinction specialists, and the
recommendations that they made with regard to what they saw
from all of the data. And I guess the one big conclusion that
we can all draw from looking at what their statements and their
reviews have been, is that the data is inconclusive, the data
leads one way or the other but doesn't specifically come to a
finite conclusion.
Mr. Williams. For this species, if I could be so bold, I
think for this species we don't argue the point that it is at
the southern most end of its range, and there is global
warming. We recognize that going on. But I don't believe that
there is anything in the Endangered Species Act that says you
can walk away from it. Because of all of the things that you
can't control, you just walk away from it.
Mr. Gibbons. We're not asking you to walk away. I think
what we want to do is make sure that the law is applied, it has
to use solely decisions made on the best scientific and
commercially available data, and that when there is a listing,
that we start taking action to turn it around to get it back
from the edge of extinction if we can, and if we can't,
rationally do what we can. The purpose of the bill and the
purpose of the law was not to be using the ESA, the Endangered
Species Act, to effect some other agenda, and that's what we
see on some occasions.
Now, I'll give you one example where the Fish and Wildlife
Service is turning another eye away from doing its job, and
that's on the Potomac River, there is a new bridge being built
between Virginia and Maryland just south of the Capitol to
facilitate the heavy, heavy traffic burden there. There is
endangered Atlantic sturgeon that lives in the Potomac River
there. Dredging the silt off the bottom is indeed an enormous
impact, has an enormous impact on the species, that endangered
species itself. And yet, the Fish and Wildlife Service has sort
of stepped back and said it's OK to dredge because we need the
bridge.
Now I guarantee you out here in Nevada, you would never get
even the consideration of that kind of a plan, let alone
dredging in the river, moving the bed upon which the sturgeon
lays its eggs and survives on out here. Plus it's stirring up a
lot of sediment, a lot of toxics metals. They are continuing to
allow the Department of Reclamation to dump toxic materials
into the Potomac, and yet it has the habitat for an endangered
species.
And we see a different application of the standards east of
the Mississippi than we do out here in the West. And for those
of us out West, these people out here that are affected
dramatically, it is very difficult to understand why when you
are in Virginia and Maryland you can go ahead and build an
eight lane bridge across an endangered species habitat, but we
can't have a little dirt road along the side of the stream up
there that doesn't impact the bull trout.
[Applause.]
Mr. Gibbons. But the purpose. If you are going to do it in
one place, be consistent and do it every place. And the
frustration is what has led not only us in Nevada but other
states, California, the Klamath area, and Oregon in the Klamath
area--excuse me--Idaho, Montana, Utah, Arizona, many many
western states are having the same very very difficult time
with the Endangered Species Act because when they get listed,
there is no way to get them off the listing. And that's
something we want to talk about in a minute is how we're going
to get this species off the endangered list.
The impact it has on private property is enormous. When a
butterfly is listed, as it was recently up in Northwest Nevada,
the impact that had on private property owners and the ability
that they could have on their own property is dramatically
impacted. I don't think that was the intent of the law because
I can't imagine back in 1973 that Congress would envision that
somebody could not step foot on his own property for fear of
endangering the habitat of a butterfly.
It's gone so far over the edge today that many of these
people here are becoming so frustrated, they don't know where
to turn. And this is why we have to come back in Congress and
start saying we have to start using scientific data rather than
using subjective nonanalytical approaches.
And I can just say that it appeared when you listed this
you didn't model the bull trout population risk or the
uncertainty using the available methods, or even the quoted
estimates provided by answers in your proposed rule that were
brought up. There were some modeling that should have been done
on those proposed rules. And the Nevada Department of Wildlife
reports that were given to you about the scarcity of the
empirical data.
And it seems to me that the modeling data that's necessary,
the science modeling--I mean, I'm a scientist but I'm in the
mining and geology side of it. We always use modeling when
we're looking at how do we view something in total and how do
we analyze it from the perspective of making use of it.
Modeling is something that you as a scientist know is the
proper way to do it, but it doesn't seem to me that you modeled
the bull trout using all of that data that you say you had from
schools, universities, states, private industries, people,
tribes. You must have had enough data to model all of this to
give you a pretty good idea, but it doesn't seem that you used
the modeling as a purpose.
Let me ask: Why didn't you model these? Why didn't you
perform a modeling exercise?
Mr. Williams. In terms of modeling the population, I think
in our review of the information that we had and because of the
way it was collected, I guess we felt like because you know any
model is only as good as the information going in and the
variances in terms of if you run a statistical analysis of the
variances that you are going to get out at the end. And because
we just believed that the data had limitations in terms of
being able to extrapolate or start looking at the overall
population.
And I think that was borne out through some of the peer
review in terms of the utility of the information. But we took
it at face value. And those data are valuable from the
standpoint of looking at snapshots in time over so many years,
the late '80's on through early '90's and into the late '90's
in terms of the persistence of the species. But the scientists
have also said the persistence of this species, bull trout in
the Jarbidge, is not very viable, if you will, based on where
we are right now.
I think the good news is, though, based on the data
collection and the working together with the state that's
occurring today, we're getting more information. We're looking
at finding other areas that have temperature that can expand
their range. With some habitat improvements, I believe that
this species can extend itself in terms of distribution, and we
can get into some activities working with the Forest Service
and the community to basically have and define what we believe
to be delisting criteria.
Mr. Gibbons. Let's talk for a moment in the brief time that
we have, let's talk a little bit about the delisting process.
In order to delist this trout what would be the requirements to
delist the bull trout?
Mr. Williams. I guess the way--and there is a--let me back
up a little bit. There is a rangewide bull trout recovery team,
and that's across the range.
Mr. Gibbons. So you're saying you would have to have the
bull trout recovery team in Oregon, Idaho, Montana and Nevada
to delist the bull trout in Jarbidge?
Mr. Williams. No. I just wanted to let you know where the
recovery criteria process is. There is a rangewide team of
which the state has been invited and the Fish and Wildlife
Service is basically leading that rangewide team. Each of the
distinct population segments, which the Jarbidge is distinct
and of itself, has what we call a local unit team. And so we
will have specific criteria for the Jarbidge distinct
population segment upon which once we meet those criteria this
area can go ahead and be delisted, without the Columbia,
without the Klamath or Puget Sound or St. Mary.
The recovery criteria that we believe that will need to be
addressed within each of their units, and I can kind of list
them for you, is looking at the distribution of bull trout in
the existing and potential local populations or in these local
population areas; the established abundance of adult bull trout
expressed as either a point estimate or a range of individuals;
the presence of stable or increasing trends in the bull trout
abundance; and restoration of fish passage at any barriers
identified within a recovery area.
Mr. Gibbons. This plan is the one you are talking about
that will be finished by December?
Mr. Williams. It should start addressing those things and
at least laying it out by the team, and then that would go out
for public comment, right. We hope to have those kinds of
criteria and how we want to approach each of those four.
Mr. Gibbons. And the kinds of criteria would be like the
American Society of Fisheries have said, if you have a
population of less than 2000, it's risky, if you have more than
2000. So if I walked out there today or say I walked out there
January 2003, you come up with your plan that says if we have a
population of 2000, not the 694 bull trout that they estimate,
and I went out there and I individually counted 2,010 bull
trout in the stream, and I qualified under that, would it be
delisted if I came in with a very specific study, if I were a
biologist and you believed me, and studied and said that 2,010
bull trout, a population that is capable of sustaining itself
and it was over the 2,000 mark, would you delist it?
Mr. Williams. I think that that's one of several of the
criteria. The exact number as estimated by adult abundance,
that is what you are talking about. You got 2,000 adults you
counted, that's one criteria.
But I think in terms of delisting, as I said in my
testimony, we are really looking at persistence over time. So I
think it's not only what you had today but can you demonstrate
based on the population over several years of sampling that
your population is stable or it's increasing.
Mr. Gibbons. Well, let me say that the population stability
was never studied by you because there was no data that
indicated the population stability over time was decreasing.
That wasn't part of your decision factor. They indicated here
that their estimates, this American Society of Fisheries, gave
an estimated number and said, well, because it is below 2,000,
it is unlikely that it will survive.
How are you going to get the population to grow? What are
you going to do to get it to grow?
Mr. Williams. I'd like to add a couple things. No. 1, I
think that's why it's so important as the recovery team starts
to come up with what we believe to be approved methodology that
gets us to statistical reliability so we can track populations
total over time. Second, I think that by improving habitat, by
working on some of the things that were identified as threats,
that I think that we can improve habitat which basically helps
build the population over time.
So with improvement of habitat, to me is the key that helps
establish and brings back the native species or brings back
populations, and we can start documenting that over time. And I
believe in the science of the viability population analysis
that says you need X number of adults and juveniles and young
fish over time, and then you will basically have a stable
population. If the scientists come back, the team comes back
and says this is what we need and here are some recovery
activities for the habitat, we put it in a plan, in the
Service's policy about a deal is a deal is real, and we'll
delist the species.
Mr. Gibbons. When you testified earlier you indicated a
number of things that you believe were a factor, preexisting
mining, preexisting large woody removal from the stream. Is
large woody removal from the stream being conducted today, or
in the recent past, last week?
Mr. Williams. Is it being investigated?
Mr. Gibbons. Is large woody debris removal currently being
conducted from the east fork of the Jarbidge River?
Mr. Williams. I don't know specifically whether it's being
done. I think it has been done in the past as a way to clear
the channel out and make sure that some of the storm events--
not storm--flood events like '95 didn't occur. That is I think
information that we receive probably from the Forest Service as
part of the listing package.
Mr. Gibbons. Going back to your delisting process, what can
we do, what can the community do, what can Congress do in the
meantime to help the species?
Because these people out here want to do it as fast as
possible. They don't want to wait till every one of them is
dead and their grandchildren say we still have the endangered
trout, and 2,000 years old and we're waiting for the next Ice
Age. They want to move forward, and if we can do something, we
want to know what it is we can do.
Mr. Williams. I believe that--well, the listing or
delisting process is critical in terms of bringing in
stakeholders and working with partners. There is no way--and we
know that we cannot delist the species by ourselves. So it
requires us, and we need to engage the local community at
whatever level they are willing to engage with us in terms of
doing that.
I think coming up with things like an improved road
maintenance program, working with Elko County and the citizens,
is there a better way to grade the road, to have access into
Jarbidge without sidecasting material. Is there a better way to
provide wood for the campers and the people that go up there
rather than just let them top down a dead or dying bush or a
limb off the tree. I think that there are ways working with the
Forest, working with BLM, working with the community to build a
recovery plan that we can all embrace and we can all work
together at delisting the species as quick as possible.
Mr. Gibbons. Explain to me and this Committee why your
agency has the sole authority to list something which you said
you cannot delist it by yourself.
Mr. Williams. I guess to me the simple answer to that is
the Congress in the passing of ESA entrusted that
responsibility to the Secretary. The Secretary of Interior is
entrusted the regulatory aspects or the Endangered Species Act
implementation to Fish and Wildlife Service.
Mr. Gibbons. Are you afraid you will be sued?
Mr. Williams. Excuse me?
Mr. Gibbons. Are you afraid you will be sued if you attempt
to delist this bull trout?
Mr. Williams. You mean right now without having--.
Mr. Gibbons. I mean, are lawsuits part of your
consideration why you either list something or don't list
something?
Mr. Williams. Not really. I think we are certainly moved
and are directed all the time by Court to list things. But as a
normal day-to-day business for myself working in my office, no,
not at all. In fact--.
Mr. Gibbons. That is because you have free lawyers, is what
you are saying. You have taxpayer paid lawyers.
Mr. Williams. If I could go on a little bit. I mean, I look
as an agent of the Fish and Wildlife Service responsible
working in the State of Nevada, I work and look hard for ways
to do everything but list species. Listing in a lot of ways is
a no-win situation.
And I would rather work with the community, and there are
examples within the state where we have worked with the
community to not list species, such as the Amargosa toad. We
are working right now on the relic frog down in Clark County to
not have to list that species, in the face of a petition right
now from a group, Center for Biological Diversity, that I think
the next step is to sue us. But I'm still forging ahead trying
to get a plan in place where we don't have to list that
species.
Mr. Gibbons. And I think that's a very very wise and
prudent place for your agency to be working. I mean, that to us
is never let the species get to that point.
Mr. Williams. Right.
Mr. Gibbons. And all I can say is I certainly hope that you
are also doing the same heavy lifting in keeping the sage hen
or the sage grouse from being listed as an endangered species
as well. That's something I think we can work on and prevent
and never have to stumble through that serious problem down the
road as well.
Mr. Vaught, you have sat there for a long time, very
patiently, haven't been asked a question. Let me just throw one
at you, just softball.
Does the Forest Service have, or even BLM, if you know,
because that's not in your prerogative, but does Forest
Service, an agency like yours, have an improved road
maintenance plan?
Mr. Vaught. The settlement agreement that I previously
described has a responsibility that the Forest Service is kind
of the lead for, but all of us as a part of the settlement
agreement are going to work to accomplish really three major
things within that settlement agreement, which are in answer to
your question. The first is resolution of the roads issue, of
course. The second is very specific habitat improvement
projects that can and should be completed on the Jarbidge River
system and the South Canyon Road area. And the third is a road
maintenance and improvement plan that we work together on with
the county to identify and implement.
I do believe that resolution of those three issues will go
a long way in dealing with the delisting issues as well.
Mr. Gibbons. Wonderful.
Gentlemen, especially Mr. Williams, you have been the
subject of my questioning now for a considerable period of
time, and I greatly appreciate your patience and your answers
as well, and I have got a number of additional questions that I
have, but rather than keep you here and keep you in the
limelight and the hot seat, so to speak, what I'd like to ask
is if I could submit written questions to you and have you
return them to the Committee within, say, a reasonable period
of time. Thirty days ought to give you time to answer some of
these questions. They shouldn't be too difficult questions, and
we will do that.
Mr. Williams. Sure.
Mr. Gibbons. I will submit them to you in writing through
the Committee process, and would appreciate both of you
responding to any questions that come to you appropriately.
With that, let me thank you for your work and your presence
here today, your testimony that you have given us. I will
excuse you now at this point and call up our third panel. Thank
you, gentlemen.
Our third panel today is going to consist of Gene Weller,
the Deputy Administrator of the Nevada Division of Wildlife,
Nevada Department of Conservation and Natural Resources; Dennis
Murphy, professor, Department of Biology, University of Nevada
Reno; Steve Trafton, Western Native Trout coordinator for Trout
Unlimited, the California chapter; Bert Brackett, a cattle
rancher from Flat Creek ranch.
Gentlemen. Well, Mr. Weller, we will begin with you going
from left all the way down the list and have you each testify,
and we would like to have you summarize your testimony as you
heard others, and we will submit your full and complete written
testimony for the record.
Mr. Weller, welcome. The floor is yours.
STATEMENT OF GENE WELLER, DEPARTMENT ADMINISTRATOR, NEVADA
DIVISION OF WILDLIFE
Mr. Weller. Thank you, Congressman Gibbons. Good afternoon
to you.
My name again for the record is Gene Weller. I am a 30-year
plus employee with Nevada Division of Wildlife. My current
position is Deputy Administrator with that agency.
But I bring a perspective to this hearing that's a little
broader. At the time of the events in question, I was the local
program biologist in this area. So I have a lot of personal
firsthand experience in there. I believe I can bring a good
deal of history to these proceedings.
And I thank you for the opportunity to testify and
including my complete testimony in the hearing record.
By Nevada statute, fish and wildlife in their natural
habitats are part of the natural resources belonging to the
people of the State of Nevada. The Division of Wildlife is
charged with the preservation, protection, management and
restoration of that wildlife and its habitat. In accordance
with this legislative mandate, the Division is responsible for
the fish populations in the Jarbidge River system which is
under consideration today.
As early as 1954, the then Nevada Fish and Game Commission
was monitoring and actively managing the fish populations of
the Jarbidge River system. That activity is continued to the
present. The results of those ongoing investigations are
maintained in individual reports, files and annual job progress
reports and are available for public inspection.
On August 11th, 1998, as a direct result of work by Elko
County to reconstruct the South Canyon Road on the west fork of
the Jarbidge River, the Jarbidge River bull trout was listed as
an emergency endangered species under the authority of the
Endangered Species Act. The emergency endangered classification
is a temporary one, normally used only when a species is in
immediate peril of extinction. The Division of Wildlife
disagreed with the emergency listing because the reach of the
Jarbidge River immediately affected by the county's actions is
not critical to the survival of the Jarbidge River distinct
population segment of bull trout.
You mentioned in your definitions earlier before the
difference between focal and nodal habitats. We would say that
the area in question was indeed a nodal habitat, not a focal
habitat. There is a big difference there. I'll address that as
I go through.
In April 1999, when the emergency endangered listing
expired, the bull trout was listed by the U.S. Fish and
Wildlife Service as a threatened species. The Division of
Wildlife after careful consideration of the biological status
of the species opposed this listing because, in our opinion,
the five threats criteria which we have talked about before
defined in the Act for listing the species are not supported.
Virtually all of the critical bull trout habitat in Nevada,
that focal area of the species, is located deep within the
Jarbidge wilderness area. It's hard to see on this map but it
is designated in the darker green there, if you look closely,
where impacts by man are virtually nonexistent. There is
currently no grazing, mining, recreation or other land use
impacts to bull trout populations within that wilderness area.
More temperature tolerant adult Jarbidge bull trout are indeed
migratory and seasonally inhabit lower reaches of the Jarbidge
River as the South Canyon Road and below. However, naturally
higher water temperatures discourage year-round bull trout
habitation of these areas. It becomes a nodal area.
Bull trout are a glacial relic, and they are dependent upon
cold clear water between 40 and 51 degrees Fahrenheit, moderate
stream gradients of less than 12 percent, and suitable stream
flows of more than one cubic feet per second for spawning and
rearing. These exacting habitat conditions are naturally
limited in the Jarbidge River system in Nevada. However,
Division studies show that where these habitat conditions
prevail in the Jarbidge, bull trout exist in reasonable and
viable numbers.
Bull trout are classified as a game fish in the state of
Nevada, but there is currently a regulation that prohibits
harvest by fishermen. Fish disease testing in the drainage has
revealed no harmful or threatening pathogens. The Division does
not stock hatchery trout in the Jarbidge River. There are no
competing or hybridizing species present in the river.
Evidence collected by the Division suggests that there are
minimum of three genetic subpopulations in the Jarbidge system,
which mitigates threats to the population from natural
disasters and ensures genetic diversity within the population
as a whole. Recent discoveries of wandering bull trout, adult
bull trout in less suitable reaches of the system support our
confidence in the role of the Jarbidge River metapopulation to
recolonize itself in case of a stochastic event.
The definition of threats in the 1999 final rule cannot be
supported. Even the rhetoric of the final rule contradicts
itself, as you pointed out, by explaining that most of the
identified threats to the persistence of bull trout are a
problem in other portions of the bull trout's range but not in
the Jarbidge.
The Division has further argued that even if the threats
defined in the listing rule were real, there are virtually no
practical management actions which could be applied to remedy
them due to the protected nature of the existing populations
and the near pristine condition of their primary habitats.
There are no significant threats to the Jarbidge River distinct
population segment of bull trout.
We currently have a listed species in the Jarbidge River
with no conceivable means to delist it. Yet the Division and
others are now obligated to divert significant resources to
meaningless recovery efforts for the bull trout.
The Division has determined from extensive biological
investigations before and after the final rule that bull trout
in the Jarbidge system are relatively well distributed
throughout the system and are secure in those habitats. Habitat
surveys conducted by the Division of Wildlife document good to
excellent aquatic and riparian habitat conditions throughout
the system. Ongoing fish surveys show fish populations,
including redband trout, mountain whitefish, suckers, dace and
bull trout that are robust, well distributed, and stable or
increasing relative to past surveys. This is consistent with
and supports the data presented to the Fish and Wildlife
Service at the time of the listing decision.
The Division utilizes proven inventory methods and
population estimation protocols that accurately portray the
status and trend of fish populations. Competent trained
biologists of the Division of Wildlife have walked every mile
of bull trout habitat in the Jarbidge River system. I would
hazard to say that we are the only ones who have done so.
Division personnel are the most knowledgeable people on
this planet about the bull trout in the Jarbidge. Our knowledge
is formidable, not based on reading a report or a treatise on
life history but by walking the streams and handling the fish.
From that practical knowledge base as well as our
substantial data, Division biologists have maintained from the
onset that bull trout populations of the Jarbidge are secure
and continue to reside in low numbers in a disjunct
distribution. That distribution represents the preferred flow
and temperature criteria for year-round bull trout occupation.
We are aware--we are aware--unaware of any declining or lost
populations since we have been conducting surveys in the
Jarbidge drainage. I would remind you that the Endangered
Species listing criteria notes that, quote, ``rarity in and of
itself is not adequate reason for listing.''
In conclusion, the Division of Wildlife, based upon
scientific data holds, that the Jarbidge River bull trout
populations are now and were at the time of their listing
viable. They are not teetering on the brink of extinction
because of the actions of man.
Indeed, the protection already afforded bull trout by the
Jarbidge Wilderness designation has probably mitigated most
human influences leaving the future of bull trout in the
Jarbidge River system subject only to natural evolutionary
processes. If the fish disappears in the unforeseeable future,
it will be because as a glacial relic, it is going the way of
glaciers. Until then, bull trout are an important part of
Nevada's wildlife resources, and the Division of Wildlife
stands ready to manage them accordingly without the unnecessary
protection of the Endangered Species Act.
I thank you for this opportunity to testify, and I will
gladly answer any questions you have.
[The prepared statement of Mr. Weller follows:]
Statement of Gene Weller, Deputy Administrator, Nevada Division of
Wildlife
Good morning, Mr. Chairman, Committee members. My name is Gene
Weller. I am a thirty plus year employee of the Nevada Division of
Wildlife, and my current position is Deputy Administrator. I bring an
added perspective to this hearing, as I was the local Fisheries Program
Supervisor here in Elko when the whole bull trout controversy started
back in the mid-1990's. I believe I can bring a great deal of history
to these proceedings. Thank you for the opportunity to testify.
By Nevada statute, fish and wildlife in their natural habitat's are
part of the natural resources belonging to the people of the State of
Nevada. The Division of Wildlife is charged with the preservation,
protection, management, and restoration of that wildlife and its
habitat. In accordance with this legislative mandate, the Division is
responsible for the fish populations of the Jarbidge River system,
which is under consideration here today. As early as 1954, the then
Nevada Fish and Game Commission was monitoring and actively managing
the fish populations in the Jarbidge River system. In 1992, in direct
response to a growing regional concern about the range-wide status of
bull trout, the Department of Wildlife embarked upon an exhaustive
inventory of the trout in the Jarbidge River system in Nevada with
specific emphasis on bull trout. This study was completed in 1994, and
results were made public in an unpublished Department report entitled
The Status of Bull Trout in Nevada (Johnson and Weller 1994). Beginning
in 1998, another exhaustive survey of the Jarbidge River fish
populations was undertaken by the now Division of Wildlife. The results
of this study are summarized in yet another Division publication
entitled The Status of Bull Trout in Nevada (Johnson 1999). I have
included copies of each report in my testimony support materials. Since
that time, the Division has continued in its efforts to discern the
biological status and trend of the Jarbidge River bull trout
population. The results of these investigations are maintained in
Division files and annual job progress reports. The information I am
providing you today is drawn primarily from the 1994 and 1999 status
reports as well as more current information.
On August 11, 1998, as a direct result of work by Elko County to
reconstruct the South Canyon road on the West Fork of the Jarbidge
River, the Jarbidge River bull trout was listed as an ``emergency
endangered'' species under the authority of the Endangered Species Act.
The ``emergency endangered'' classification is a temporary one,
normally used only when a species is in immediate peril of extinction.
The Division of Wildlife disagreed with the emergency listing because
the reach of the Jarbidge River immediately affected by the County's
actions is not critical to the survival of the Jarbidge River Distinct
Population Segment of bull trout. In April 1999, when the ``emergency
endangered'' listing expired, the bull trout was listed by the U.S.
Fish and Wildlife Service as a ``threatened'' species. The Division of
Wildlife, after careful consideration of the biological status of the
species, opposed this listing because, in our opinion, the five
criteria defined in the Act for listing a species are not supported.
Those five criteria are:
1. LThe present or threatened destruction, modification, or
curtailment of its habitat or range;
2. LOver-utilization for commercial, recreational, scientific, or
educational purposes;
3. LDisease or predation;
4. LThe inadequacy of existing regulatory mechanisms; and
5. LOther natural or manmade factors affecting its continued
existence.
It is our contention, and has been since the listing occurred three
years ago, that the Jarbidge River bull trout populations in their
present or future states are not subject to the aforementioned threats;
neither is the species imperiled unto extinction.
Virtually all the critical bull trout habitat in Nevada is located
deep within the Jarbidge Wilderness Area where impacts by man are
virtually non-existent. There are currently no grazing, mining,
recreational or other land use impacts to bull trout populations within
the wilderness area. More temperature tolerant adult Jarbidge bull
trout are migratory, and seasonally inhabit lower reaches of the
Jarbidge River such as the South Canyon Road site; however naturally
higher water temperatures discourage year around bull trout habitation
in these areas. Bull trout are a glacial relict, and they are dependent
upon cold clear water between 40' to 51'F, moderate stream gradient of
less than 12%, and suitable stream flows of more than one cubic feet
per second for spawning and rearing. These exacting habitat conditions
are naturally limited in the Jarbidge River system in Nevada; however,
Division studies show that where these habitat conditions prevail in
the Jarbidge, bull trout exist in reasonable and viable numbers.
Bull trout are classified as a game fish in the State, but there is
currently a regulation that prohibits harvest by fishermen. Fish
disease testing in the drainage has revealed no harmful or threatening
pathogens. The Division does not stock hatchery trout in the Jarbidge
River. There are no competitive or hybridizing species present in the
river. Evidence collected by the Division suggests there are a minimum
of three genetic subpopulations in the Jarbidge system, which mitigates
threats to the population from natural disasters, and insures genetic
diversity within the population as a whole. Recent discoveries of
``wandering'' adult bull trout in less suitable reaches of the system
support our confidence in the role of the Jarbidge River metapopulation
to recolonize itself in the event of a stocastic event.
The definition of threats in the 1999 final rule cannot be
supported. Even the rhetoric of the final rule contradicts itself by
explaining that most of the identified threats to the persistence of
bull trout are a problem in other portions of the bull trout's range,
but not in the Jarbidge. The Division has further argued that even if
the threats defined in the listing rule were real, there are virtually
no practical management actions which could be applied to remedy them,
due to the protected nature of the existing populations and the near
pristine condition of their primary habitats. There are no significant
threats to the Jarbidge River Distinct Population Segment of bull
trout. We currently have a listed species in the Jarbidge River with no
conceivable means to delist it. Yet the Division and others are now
obligated to divert significant resources to meaningless recovery
efforts for the bull trout.
The Division has determined from extensive biological
investigations before and after the final rule that bull trout in the
Jarbidge River system are relatively well distributed throughout the
system and are secure in those habitats. Historical data indicates bull
trout have always had a limited presence in this system; however, where
there is adequate habitat, primarily water temperature related, there
are bull trout. Studies also document that current habitat conditions
are infinitely better than those of recorded history when the Jarbidge
River environs were subjected to severe degradation from livestock
grazing and mining. The records conclusively show that the Jarbidge
River system was severely over-grazed by livestock between the mid-
1880's to about 1930. Gold was discovered in Jarbidge Canyon in 1909,
with an influx of miners and other fortune seekers beginning to invade
the area during the spring of 1910. The drainage was heavily prospected
and mined for about the next 10 years with several successful mining
and milling operations operating in the immediate vicinity of the
river. During this period, living conditions for trout in the river
were extremely poor, and trout survival and persistence was tenuous. If
the fish could persist in the severely degraded habitat conditions of
the late 1800's and early 1900's, they surely will flourish in the
vastly improved conditions of today.
Today, habitat surveys conducted by the Division of Wildlife
document good to excellent aquatic and riparian habitat conditions
throughout the system. Areas with localized grazing problems are being
addressed and are seldom in critical bull trout habitat anyway. As you
can see from the distribution maps, the majority of focal or critical
bull trout habitat (designated in dark blue) is located deep within the
Jarbidge Wilderness. Mining is non-existent in the area. While
sedimentation from road construction and maintenance are always an
issue with fish survival, those areas in the Jarbidge system with road
issues are outside the critical bull trout habitats. Even the role of
migratory fluvial bull trout is not overtly jeopardized by
sedimentation from roads because of timing. Fluvial bull trout
typically migrate to cooler water in the spring when high flows
mitigate the effects of sediments. Spawning and rearing take place
during the fall and winter months in protected upstream reaches of
streams devoid of roads and their impacts.
Ongoing fish surveys show fish populations including redband trout,
mountain whitefish, suckers, dace and bull trout that are robust, well
distributed, and stable or increasing relative to past surveys. This is
consistent with, and supports, the data presented to the Fish and
Wildlife Service at the time of the listing decision. The Division
utilizes proven inventory methods and population estimation protocols.
While not as statistically valid as research protocols, the methods
used by the Division are considered totally adequate for management
purposes, and they accurately portray the status and trend of fish
populations. Competent, trained biologists of the Division of Wildlife
have walked every mile of bull trout habitat in the Jarbidge River
System. I would hazard to say we are the only ones who have done so.
Division personnel are the most knowledgeable people on this planet
about the bull trout in the Jarbidge. Our knowledge is formidable, not
based on reading a report or a treatise on life history, but by walking
the streams and handling the fish. From that practical knowledge base
as well as our substantial data, Division biologists have maintained
from the onset that bull trout populations of the Jarbidge are secure
and continue to reside at low numbers in a disjunct distribution. That
distribution represents the preferred flow and temperature criteria for
year-around bull trout occupation. We are unaware of any declining or
lost populations since we have been conducting surveys in the Jarbidge
Drainage. I would remind you that Endangered Species listing criteria
notes that ``rarity in and of itself is not an adequate reason for
listing.''
It is unfortunate that the South Canyon road issue and the bull
trout are being considered together. There is little doubt that roads
in the immediate vicinity of streams are characteristically deleterious
to fish populations. Sedimentation, pollution and channelization
normally associated with roads are real threats to fish populations.
The Division of Wildlife has consistently opposed the redevelopment of
the South Canyon road; however, our opposition is not based on the
potential extirpation of bull trout, but the negative impact roads
typically have on all aquatic fish and wildlife species. The
redevelopment of the South Canyon road will not press the bull trout
nor any other species in the river over the brink of extinction, nor is
the threat of that redevelopment grounds for a listing of the bull
trout as a threatened species under the auspices of the Endangered
Species Act of 1973. We object strenuously to the improper and
unethical use of bull trout as a surrogate.
In conclusion, the Division of Wildlife, based upon scientific
data, holds that the Jarbidge River bull trout populations are now and
were at the time of their listing, viable. They are not teetering on
the brink of extinction because of the actions of man. Indeed, the
protection already afforded bull trout by the Jarbidge Wilderness
designation has probably mitigated most human influences, leaving the
future of bull trout in the Jarbidge River system subject only to
natural evolutionary processes. If the fish disappears in the
unforeseeable future, it will be because as a glacial relict, it is
going the way of the glaciers. Until then, bull trout are an important
part of Nevada's wildlife resources, and the Division of Wildlife
stands ready to manage them accordingly, without the unnecessary
protection of the Endangered Species Act.
Thank you for this opportunity to testify. I will gladly entertain
your questions.
Support Materials:
1. LThe Status of Bull Trout in Nevada (Johnson 1999). [This
document has been retained in the Committee's official files.]
2. LThe Status of Bull Trout in Nevada (Johnson, Weller 1994).
[This document has been retained in the Committee's official files.]
3. LCopy of Division of Wildlife letter to the U.S. Fish and
Wildlife Service opposing the ESA listing of bull trout dated October
5, 1998. [This document has been retained in the Committee's official
files.]
______
Mr. Gibbons. Thank you, Mr. Weller. Excellent statement.
Professor Murphy, welcome and happy to have you. I'm a
University of Nevada alumni myself and proud that you are
there. You might want to tell the audience your background and
experience or your expertise so that when you begin your
testimony they can get acquainted with you.
STATEMENT OF DENNIS MURPHY, PROFESSOR, DEPARTMENT OF BIOLOGY,
UNIVERSITY OF NEVADA, RENO
Mr. Murphy. Thank you, Congressman Gibbons. I'll do that.
My name is Dennis Murphy. I'm the Director of the Ph.D. Program
in ecology, evolution and conservation biology--I won't give
you the acronym to all of that--at the University of Nevada,
Reno.
Pertinent to this hearing I'm actually the Past President
of the International Society for Conservation Biology. I served
on the interagency's spotted owl scientific committee which was
convened in the late '80's, early '90's, to deal with that
issue. More recently I headed up the approach in California
which created the natural community's conservation planning
effort to take care of the California gnat catcher.
I have also been team leader in your own backyard of the
Late Tahoe watershed assessment, and we delivered that 1,100
page assessment of the status of Tahoe's resources in 1999. And
finally, I think quite pertinent to this hearing, I was
selected by the National Academy of Sciences to serve the GAO
in the review of the desert tortoise listing and recovery plan
on request of this same House Committee.
In an effort to stay brief I'll skip a little of my
background information beyond that to suggest that we have got
technical experts on either side of me that are going to weigh
in on many of these technical issues, but I did in these few
comments want to set the listing of the bull trout in the
context of other listings of species in the West. We should
note that the Jarbidge bull trout with no more than eight
extant demographic units is truly severely in peril by any
measure. The sizes of the remnant populations are frightening
small, and that is on the basis of accounts by all the experts.
We're looking at dozens of fishes to hundreds of fishes in each
of those eight demographic units.
Those populations by any assessment are well within the
range of expected stochastic and that is random events such as
droughts, deluge, landslides and wildfires that commonly cause
species to go extinct locally when populations are of those
size. The apparent desperate sensitivity of the bull trout to
environmental variation, its need for extraordinarily cold
waters for reproduction, its highly fragmented distribution,
its susceptibility to inevitable future climate changes, all
make this species worthy of some Federal protection.
There is a good question that might be asked, and we
probably won't answer it here, but why was the species tendered
threatened status and not the higher statutory and regulatory
standard endangered status. The Jarbidge bull trout is by most
measures more perilous in terms of its current circumstances
than a great many listed endangered species. But instead it has
threatened status, similar to the desert tortoise, the northern
spotted owl, the marbled murrelet, and a number of other
species that actually have multistate distributions.
Listing of those species certainly were also controversial
and received intense scrutiny including scientific review and
legal challenge, and they like the bull trout were shown to be
on a clear and unhalted slide toward disappearance. At the time
of the listing the question of peril for the bull trout was not
when--excuse me--was not when--excuse me--was not if but when
the trout would actually vanish.
Now perhaps lost in arguments over how many individual bull
trout remain is the true measure of risk to the species. It is
not its current status per se, but population trends that
should concern us regarding the bull trout in the Jarbidge
mountains and elsewhere. This species undoubtedly has declined
from historical numbers of both population and of individuals.
Much of that decline undoubtedly occurred before any of the
counts that have been provided to the Fish and Wildlife Service
were made from Nevada.
But many key details, and this is important, many key
details of trout biology and the state of the habitat to
support it remain unknown. Those uncertainties don't compromise
or invalidate the listing decision, but they do challenge
planners who should right now be working to recover the species
and remove it as promptly as possible from the Federal list.
Where current science is going to come up short in this
controversial conservation effort is not in the listing per se
but in the follow through, after the listing actions. We do not
know enough today to chart a reliable course for this species
to recovery. Recovery of the bull trout will have to be
informed by new information on the species' physiological
tolerances, on its ecological interactions with its habitat and
other species, and on metapopulation, that is between
population dynamics across the Jarbidge system.
Until good science can reduce uncertainties about the bull
trout, we will be able to do very little to improve its
circumstances.
The linked issues of science and uncertainty in the
Endangered Species Act are clearly issues of importance to this
Committee, as evidenced by this hearing and the GAO review of
the desert tortoise actions. As you know, Congress required the
Departments of Interior and Commerce that listings of species
be informed, as you said, by the best available scientific and
commercial data. Correspondingly, I can offer you no examples
of species that have been listed without justification and
without a preponderance of data, even when data are limited,
that support that Federal action.
That the Fish and Wildlife Service has never had to reverse
a listing or has had courts intervene to do so reflects the
typical use of the best available information in new listings.
But listing is not where science is missing in act and
implementation.
The statute unfortunately offers no specific direction on
the use of science and actions that accompany and follow
listings, including the designation of critical habitat, the
development and implementation of recovery plans, establishment
of habitat conservation plans under section 10(a), and
certainly in conversations between agencies under section 7.
These are the real contexts in which the prohibitions of the
Act's section 9 affect stakeholders, where the benefits of
listing are supposed to serve the bull trout and where the real
impacts of the listing are going to affect the Elko County
residents and other Nevadans.
The resource agencies struggle in these areas to bring good
products forward, but absent explicit guidelines for applying
science, without staff support trained in cutting-edge
applications, and with virtually no funding to bring in outside
expertise, scientific input into agency implementation efforts
is inevitably hit and miss.
It would be easy to direct the agencies just to submit
their proposed actions to some version of scientific, and we
can call it peer review, probably involving academic and
consulting scientists, but the proliferation of agency actions
in much of the West and certainly in California make that
proposition unwieldy at best. The statute really needs to give
the agencies clear direction for the use of science, under
which circumstances and how science should inform their
actions. In turn, the agencies need to draw roadmaps for
bringing better and more reliable defensible knowledge to their
decisions and actions through better articulated regulations
and standards of performance.
Having heard the bell, I wanted to close by pointing out
that I would rather be remiss not to note that we have been
blessed by Fish and Wildlife Service field office here. It is
remarkably competent and reasonable. My experience in
California has not nearly been as pleasurable as it is here in
the state of Nevada.
I want to keep in mind that the noise surrounding the
listing of the bull trout is really more of a glaring exception
than the rule in the state of Nevada, reminding folks that the
Jarbidge bull trout was the first species restricted solely to
Nevada that's been listed since 1985. The only listings in
Nevada in the '90's other than the bull trout were actually the
desert tortoise and the southwest willow fly catcher, and those
listings were really precipitated because of circumstances
beyond this state.
And I wanted to point out that and the facts resonate that
in 1993 this state was fourth in the Nation in candidates for
endangered species listing, and remains today third out of 50
states in amphibians at risk, and fourth in the Nation in
plants and fish at risk. And I do think that we have shown
elsewhere in the state, the mention of the Amargosa toad in the
last panel is an example, the Tahoe yellowcrest up at Lake
Tahoe, both species kept off the list through the cooperation
of stakeholders, scientists, agency folks, both in land and
resource, and I think if we can use those as exemplars of
dealing with these problems, we're going to be in very good
stead.
[The prepared statement of Mr. Murphy follows:]
Statement of Dennis D. Murphy, Director of the Graduate Program in
Ecology, Evolution and Conservation Biology at the University of
Nevada, Reno
My name is Dennis Murphy. I am director of the graduate program in
Ecology, Evolution, and Conservation Biology at the University of
Nevada, Reno. Pertinent to this hearing, I am past president of the
international Society for Conservation Biology, served on the
Interagency Spotted Owl Scientific Committee, was chief architect of
California's Natural Community Conservation Planning Program, was team
leader of the Lake Tahoe Watershed Assessment, and just two weeks ago
served the National Academy of Sciences in assistance to the GAO in its
review of the original listing and subsequent recovery plan for the
desert tortoise - - that effort in response to a request from this
House Committee to consider the reasonableness of that listing, much as
you consider the reasonableness of the bull trout listing today.
The Jarbidge bull trout is a species known to few Americans, but it
is hardly the most obscure species to make headlines during the thirty
years of conservation planning under the Endangered Species Act of 197
3. The listing of an obscure fish, the snail-darter, was challenged in
1976 all the way to the Supreme Court, where the strength of the then
fledgling statute was affirmed. The first species to cause real
conflict on private property was the mission blue, a butterfly the size
of a dime found in an urbanized habitat in the San Francisco bay area.
And a drab six gram bird that meows like a kitten, the California
gnatcatcher, has required developers to spend hundreds of millions of
dollars to mitigate its habitat losses, and created a crisis in land
use that makes our Nevada conflicts look trivial. Those listings and
those of many dozens of other species both grand and seemingly trifling
have caused similar consternation among landowners, recreationalists,
and committed opponents of big federal government. While opposition to
the ESA and its implementation has often been as heartfelt elsewhere,
it has rarely been quite as loud as here in Elko County, Nevada -
which, of course, makes a measured discussion of science and bull trout
that much more important.
Other technical experts from the resource agencies and academia
have weighed and will weigh in on the question of the appropriateness
of the Jarbidge bull trout listing. I set my opinion here in the
context of other animal listings in the western states during the past
decade. The Jarbidge bull trout, with no more that eight extant
demographic units (and probably no fewer than four, is severely
imperiled by any measure. The sizes of the remnant populations are
frighteningly small by the accounts of all the expert - - just dozens
to hundreds of individual fish. These populations are well within the
size range at which expected stochastic environmental events, droughts,
floods, landslides, and wildfires very commonly cause species to
disappear, even without the helping hands of humans. The apparent
desperate sensitivity of Jarbidge bull trout to environmental
variation, its need for extraordinarily cold waters for reproduction,
its now highly fragmented distribution, its susceptibility to
inevitable future climate changes, all make the species worthy of
federal protection. And, actually, a fair question might be asked - -
why was the species tendered threatened status and not the higher
regulatory standard, endangered status. The Jarbidge bull trout is by
most measures in more perilous circumstances than a great many listed
endangered species; instead it has threatened status similar to the
desert tortoise, northern spotted owl, marbled murrelet, and a number
of other species with multi-state distributions and much greater
likelihoods of survival. Listings of those species also were
controversial and received intense scrutiny, including scientific
review and legal challenge, and they like the Jarbidge bull trout were
shown to be on a clear and unhalted slide toward disappearance. At the
time of its listing the question of peril for the bull trout was not
if, but when, this vanishing species would finally vanish.
Perhaps lost in arguments over exactly how many individual Jarbidge
bull trout remain is the true measure of the risk to the species. It is
not its current status, but population trends that should concern us
about the bull trout in the Jarbidge mountains and elsewhere. The
species undoubtedly has declined from historical numbers of both
populations and individuals in those populations. Much of that-decline
may have occurred before any recorded studies of the fish in Nevada.
But many key details of bull trout biology and the state of the habitat
that supports it remain unknown. Those uncertainties do not compromise
or invalidate the listing decision, but they do challenge planners who
should be working to recover the species and remove it as promptly as
possible from the federal list.
Where current science is going to come up short in this
controversial conservation effort is not in the listing of the bull
trout but in the follow though, the after the listing actions. We do
not know enough today to chart a reliable course for this species to
recovery. Recovery of the bull trout will have to be informed by new
information on the species' physiological tolerances, on ecological
interactions between the trout and its habitat and other species, and
on metapopulation dynamics across the broad Jarbidge landscape. Until
good science can reduce uncertainties about the bull trout, we will be
able to do very little to improve its circumstances.
The linked issues of science and uncertainty in Endangered Species
Act implementation is clearly an issue of importance to this committee,
as evidenced by this hearing and the GAO review of the desert tortoise
actions. As you know Congress required of the Departments of the
Interior and Commerce that listings of species be informed by ``the
best available scientific and commercial data.'' Correspondingly, I can
offer you no examples of species that have been listed without
justification and without a preponderance of data that support federal
action. That the U.S. Fish and Wildlife Service and National Marine
Fisheries Service have never had to reverse a listing, or had the
courts intervene to do SO , reflects their typical use of the best
available information in new species listings. But listing is not where
science is missing in Act implementation.
The statute unfortunately offers no specific direction on the use
of science in actions that accompany and follow listings, including the
designation of critical habitat, development and implementation of
recovery plans, establishment of habitat conservation plans under
section 10(a) of the Act, and conservation between agencies under
section 7. These are the contexts in which the prohibitions in the
Act's Section 9 affect stakeholders, where the benefits of listing
serve the bull trout itself and where the real impacts of the listing
affects Elko County residents and other Nevadans. The resource agencies
struggle in these areas to bring good products forward, but absent
explicit guidelines for applying science, without staff support.
trained in cutting edge applications, and with virtually no funding to
bring in outside expertise, scientific input into agency implementation
efforts is inevitably hit or miss.
It would be easy to direct the agencies to submit their proposed
actions to some version of scientific ``peer'' review, probably
involving academic and other consulting scientists, but the
proliferation of agency actions in much of the west, and certainly in
California, make that proposition unwieldy at best. The statute needs
to give the agencies clearer direction for the use of science--under
which circumstances and how science should inform their actions. In
turn, the agencies need to adumbrate roadmaps for bringing reliable and
defensible knowledge to their decisions and actions through better
articulated regulations and standards of performance. The criteria
promulgated by the ESA agencies in the Federal Register 9 March 1999,
intended to provide clarifying guidance to habitat conservation
planning, may provide model language for new statutory directives and
regulations that invoke science.
Out in the great expanses of rural Nevada, I would be remiss not to
note that the state has have been blessed with a Fish and Wildlife
Service field office that is almost uniquely competent and reasonable.
The rant and fustian that has accompanied the listing of the bull trout
is not the course of regular business in Nevada, it is a glaring
exception. The Jarbidge bull trout is the only new federal listing of
an organism restricted to Nevada since 1985. The only listings in
Nevada in the 1990s other than the bull trout were the desert tortoise
and southwest willow flycatcher, two species in much more trouble
outside of our state. These facts should resonate in a state that
ranked fourth in the nation for candidate species for protection in
1993, and today ranks third in amphibians at risk, and fourth in plants
and fishes vulnerable to extinction. Through cooperation between land
and resource managers, scientists, and stakeholders, imperiled species
have been protected without listing actions in Nevada. Two species at
equally great risk of extinction as the bull trout, the Amargosa toad
in Nye County and Tahoe yellow cress at Lake Tahoe, show that trading
shovels for dialogue can have a win-win result, having benefitted from
collaborative efforts and conservation strategies that have kept them
off the federal list.
I hope that the concern expressed by the Resources Committee in
their request for review of desert tortoise and bull trout listings be
expanded to consider science in other aspects of Endangered Species Act
implementation and the funding that will be necessary to support that
science. I am glad to answer questions about technical issues pertinent
to the bull trout listing, and hope that experiences in conservation
planning elsewhere in our great state can be used to inform the
challenge of saving this very special fish species.
______
Mr. Gibbons. Very good, Professor.
Mr. Trafton, welcome. The floor is yours.
STATEMENT OF STEVE TRAFTON, WESTERN NATIVE TROUT COORDINATOR,
TROUT UNLIMITED
Mr. Trafton. Thank you. Mr. Chairman, Trout Unlimited
thanks you for the invitation to testify here today. Trout
Unlimited is an organization of 130,000 members organized into
more than 450 local chapters nationwide. Our mission is to
conserve, restore and protect America's trout and salmon
fisheries and their watersheds. We have a long history of
working with local communities, landowners, and state and
Federal agencies.
Trout Unlimited has invested an enormous amount of
volunteer effort in the Jarbidge River. Our local volunteers
raised $10,000 to help build the bridge that replaced a culvert
on Jack Creek that was preventing bull trout from moving
upstream to spawning habitat. Trout Unlimited volunteers
sponsored a fencing project on Jack Creek to protect the stream
corridor. Countless hours have been spent working on stream
habitat improvements and on participation in the management
planning processes that affect the Jarbidge River's trout
resource. We take great pride in these efforts.
Our members come from a wide variety of backgrounds, but
they share a common belief in the principle that healthy
watersheds are at the heart of the great trout fishing
opportunities that Americans enjoy. That principle is at the
heart of our work in the Jarbidge River watershed.
As your slide earlier pointed out, Trout Unlimited has not
been directly involved in any of the listing processes or the
litigation that resulted in the Jarbidge River bull trout's
current listed status. Trout Unlimited has been involved since
1995 in an effort to protect the bull trout from the harmful
sediment loading that occurs as a part of the cycle of flood
damage and road repair that has been at great expense to the
taxpayer the South Canyon Road's primary legacy.
Let me emphasize that our involvement has consisted from
start to finish in participating in the public processes that
have been established to allow citizens to have a say in the
management of America's public natural resources. Trout
Unlimited's attempts to highlight the precarious state of bull
trout in the Jarbidge River certainly did shed light on the
potential need for a listing under the Endangered Species Act.
They were not the reason the species was listed however.
That decision, as we heard earlier, had been made even
before Elko County's Commissioners decided to take the law into
their hands and repair the road regardless of the consequences.
We're all familiar with what the first consequence of that
action was, an emergency listing.
It is worth noting that biology aside, the County
Commissioners' actions and attitudes are ongoing proof of, in
the words of the Endangered Species Act, the inadequacy of the
existing regulatory mechanisms protecting bull trout. In other
words, the Elko County Commissioners didn't only put the trout
listing on the fast track, they were also ensuring that the
bull trout stays listed for a long time.
Should the Jarbidge bull trout be a listed species? Let me
state for the record that I am not a biologist. I and Trout
Unlimited draw conclusions from the consultation of as wide a
variety of experts as possible. In this case, the experts, with
the notable exception of the Nevada Division of Wildlife, say
that the species should be listed.
To cite a handful of examples, the Humboldt-Toiyabe
National Forest 1998 Environmental Assessment of proposed South
Canyon Road repairs stated that, quote, ``It is premature to
say that the population of bull trout in the Jarbidge River is
stable,'' unquote. The Forest Service's Jason Dunham, a leading
authority on bull trout, has reviewed the species status and
the NDOW position on bull trout listing and twice in 1998 and
again in 1999 concluded that NDOW's reasoning is flawed and
that Jarbidge bull trout are indeed at risk.
In 2000, a review of NDOW's position by the Western
Division of the American Fisheries Society concluded that a
listing was warranted.
Finally, the U.S. Fish and Wildlife Service decided as far
back as 1997, long before the South Canyon Road controversy
erupted, that a listing was warranted.
Science favors the listing.
In Trout Unlimited's view, the purpose of today's hearing
should not have been just another rehashing of an old topic. Is
there sufficient empirical or modeling data to justify a
listing? The experts answered that question a long time ago.
Incidentally, anyone, anyone who believes that Jarbidge
bull trout should be delisted can petition to delist the
species. If there is sufficient information out there to
convince a majority of the experts that a delisting is
warranted, then so be it.
I think we all know that right now that's not the case. Our
focus today and our focus in the future should be on gathering
whatever information we lack and making whatever improvements
to habitat and management strategies that we can to ensure that
Jarbidge bull trout can be delisted and stay delisted.
Trout Unlimited's work in the Jarbidge watershed has had
improved habitat and stable bull trout populations as its
mission from the start. Our work might once have helped to
provide a reason not to list bull trout. Our work can still set
us on a path toward restoring the health and vitality of this
unique population of game fish.
Thank you, and I'm happy to answer any questions you might
have.
[The prepared statement of Mr. Trafton follows:]
Statement of Steve Trafton, Trout Unlimited, California Chapter
Mr. Chairman, Trout Unlimited thanks you for the invitation to
testify here today. Trout Unlimited is an organization of 130,000
members organized into more than 450 local chapters nationwide. Our
mission is to conserve, restore, and protect America's trout and salmon
fisheries and their watersheds. We have a long history of working with
local communities, landowners, and state and federal agencies.
Trout Unlimited has invested an enormous amount of volunteer effort
in the Jarbidge River. Our local volunteers raised $10,000 to help
build the bridge that replaced a culvert on Jack Creek that was
preventing bull trout from moving upstream to spawning habitat. Trout
Unlimited volunteers sponsored a fencing project on Jack Creek to
protect the stream corridor. Countless hours have been spent working on
stream habitat improvements and on participation in the management
planning processes that effect the Jarbidge River's trout resource. We
take great pride in these efforts. Our members come from a wide variety
of backgrounds, but they share a common belief in the principle that
healthy watersheds are at the heart of the great trout fishing
opportunities that Americans enjoy. That principle is at the heart of
our work in the Jarbidge watershed.
Trout Unlimited has not been directly involved in any of the
listing processes or the litigation that resulted in the Jarbidge River
bull trout's current listed status. Trout Unlimited has been involved,
since 1995, in an effort to protect the bull trout from the harmful
sediment loading that occurs as a part of the mindless cycle of flood
damage and road repair that has been--at great expense to the
taxpayer--the South Canyon Road's primary legacy. Let me emphasize that
our involvement has consisted, from start to finish, in participating
in the public processes that have been established to allow citizens to
have a say in the management of America's public natural resources. We
have been surprised by the extreme reaction that our position in this
debate has provoked. Let us recall the basic facts: This is a mile and
a half of dead-end road leading to an outhouse.
Trout Unlimited's attempts to highlight the precarious status of
bull trout in the Jarbidge River certainly shed light on the potential
need for a listing under the Endangered Species Act. They were not the
reason that the species was listed, however. That decision had been
made even before Elko County's commissioners decided to take the law
into their hands and repair the road, regardless of the consequences.
We are all familiar with what the first consequence of that action was:
an emergency listing. It is worth noting that, biology aside, the
county commissioners' actions and attitudes are ongoing proof of--in
the words of the Endangered Species Act--the inadequacy of the existing
regulatory mechanisms protecting bull trout. In other words, the Elko
County commissioners didn't only put the bull trout listing on the fast
track; they are also ensuring that the bull trout stays listed for a
long, long time.
Should the Jarbidge bull trout be a listed species? Let me state
for the record that I am not a biologist. I, and Trout Unlimited, draw
conclusions from the consultation of as wide a variety of experts as
possible. In this case, the experts--with the notable exception of the
Nevada Division of Wildlife--say that the species should be listed. To
cite a handful of examples: The Humboldt Toiyabe National Forest's 1998
Environmental Assessment of proposed South Canyon Road repairs stated
that ``it is premature to say that the population of bull trout in the
Jarbidge River is stable.'' The Forest Service's Jason Dunham, a
leading authority on bull trout, has reviewed the species' status and
the NDOW position on a bull trout listing and twice, in 1998 and 1999,
concluded that NDOW's reasoning is flawed and that Jarbidge bull trout
are ``at risk.'' In 2000, a review of NDOW's position by the Western
Division of the American Fisheries Society concluded that a listing was
warranted. Finally, the U.S. Fish and Wildlife Service decided as far
back as 1997--long before the South Canyon Road controversy erupted--
that a listing was warranted. It is worth noting that the Service was
motivated, in part, by the concerns expressed by the Nevada Division of
Wildlife that angling pressure was resulting in the harvest of
significant numbers of Jarbidge River bull trout.
Science favors the listing. In Trout Unlimited's view, the purpose
of today's hearing should not have been just another rehashing of an
old topic. Is there sufficient empirical or modeling data to justify a
listing? The experts answered that question a long time ago.
Incidentally, anyone who believes that Jarbidge bull trout should not
be listed can petition to delist the species. If there is sufficient
information out there to convince a majority of the experts to support
a delisting then so be it. We all know that that is not the case at the
moment.
No, our focus today, and our focus in the future, should be on
gathering whatever information we lack, and making whatever
improvements to habitat and management strategies that we can to ensure
that Jarbidge bull trout can be delisted, and stay delisted. Trout
Unlimited's work in the Jarbidge watershed--from fundraising for the
Jack Creek bridge to participating in the public processes through
which management decisions are made--has had improved habitat and
stable bull trout populations as its mission from the start. Our work
might once have helped to provide a reason not to list bull trout. Our
work can still set us on a path towards restoring the health and
vitality of this unique population of game fish.
______
Mr. Gibbons. Thank you, Mr. Trafton.
Mr. Bert Brackett from Idaho, Rogerson, Idaho. Thank you
for driving all the way down here to Elko to participate in
this.
Bert, the floor is yours.
STATEMENT OF BERT BRACKETT, CATTLE RANCHER
Mr. Brackett. Thank you, Mr. Chairman, for inviting me to
testify at this hearing. I'm Bert Brackett. I'm representing
myself, my family and our ranching operation. I'm a fourth
generation rancher, and my family has ranched in the area for
over 100 years. Headquarters ranch is in Three Creek, Idaho,
where we winter our cattle. We summer across the state line in
Nevada.
Our ranch like many others in the West is a combination of
private, state, BLM and Forest Service lands, when combined
together forms a viable economic unit and as such helps
maintain open space, preserve natural landscapes.
I would like to share with this Committee what seems to be
a real success story. It is, however, a classic example of how
advocacy science can be used to further an agenda.
1993, bull trout numbers in Dave Creek, which is a major
stream between the east fork and the west fork of the Jarbidge
River, was estimated at 251 fish. For the next 8 years
management practices stayed the same. Nothing changed except
the bull trout listing. 2001, field investigation of Dave Creek
reported about a thousand bull trout, over 400 percent
increase.
On the surface this might appear to be remarkable recovery.
But the fact of the matter is it was two separate studies with
two different objectives that gathered the science to support
their agenda at the time.
I would like to comment on the process that led up to the
listing. In 1994, a bull trout working group was formed with
the goal of being proactive, being ahead of the curve, trying
to take actions that would head off possible listing under the
Endangered Species Act. It was done in a collaborative fashion
with a spirit of cooperation.
That all came to an end when the Jarbidge bull trout were
listed on emergency basis to stifle the Jarbidge shovel
brigade. That was the end of the working group, as far as I
know, and consequently, the efforts of the working group were
largely wasted.
Others will address the South Canyon Road situation so I'll
limit my comments to effects on grazing. Listing under the
Endangered Species Act opened up a whole new array of possible
lawsuits and legal action. This past year we started to see
radical extremist environmental groups begin to exploit the
Act. We received a notice of intent to sue for grazing on our
private lands. The charge is without merit, but when threatened
we must defend ourselves. BLM and Forest Service also received
notices of intent to sue which would force them to deny us
water for our cattle which we have used for close to 50 years.
The extremist goal is to end grazing on Federal land in the
West, and Endangered Species Act has become the weapon of
choice because it lends itself to harassment and opportunities
for lawsuit.
We have and will continue to fully cooperate with the land
management agencies to protect natural resources including bull
trout. For example, the biological assessment for ongoing
activities stated that spawning starts in September, and since
our cattle were present, that fish may be adversely affected.
Our grazing permit has a season of use from July to
October. We asked the Forest Service to modify our permit so we
would remove cattle from the allotment by September 1st,
thereby limiting the possibility of conflict. They would not
modify our permit, but they did make the change in our annual
operating plan.
The burden from redundant overregulation on ranchers speaks
to the socioeconomic impact caused by the listing. We have been
in compliance with the rules and regulations, we're meeting the
standards. So it's not about protecting the fish. This is about
abuse of process with a purposeful intent to damage private
citizens.
The upper end of Jarbidge watershed is wilderness. The
lower is wilderness study area, wild and scenic river and ACEC
for big horn sheep. So it receives layer and layer of
restrictions and protections. Streams have been evaluated for
PFC and are in properly operating condition. In addition, there
are water quality standards set by DEQ.
For grazing, we have to meet the standards and guidelines
as well as utilization levels on upland vegetation as well as
riparian forage and shrubs. To add the full weight of
regulation provided for in the Endangered Species Act is
overkill. Most troubling is the additional avenues of
harassment it opens up for radical environmentalists dedicated
to ending grazing in the West.
In conclusion, is the Jarbidge River population of bull
trout truly threatened? Probably not. Should it be delisted?
Most definitely. Should the Act be amended to require peer
review science and to prevent many of the abuses the law
currently allows? Again, most definitely. Thank you for
allowing me to testify. Are there any questions?
[The prepared statement of Mr. Brackett follows:]
Statement of Bert Brackett, Flat Creek Ranch, Rogerson, Idaho
Thank you Mr. Chairman for inviting me to testify at this hearing.
I am Bert Brackett and am representing myself, my family and our
ranching operation. I am a fourth generation rancher and my family has
ranched in the area for over 100 years. Our headquarters ranch is in
Three Creek, Idaho where we winter our cattle. We summer across the
state line in Nevada. Our ranch like many in the West is a combination
of private, state, BLM, and Forest Service lands. When combined
together, it forms a viable economic unit and as such helps maintain
open space and preserve natural landscapes.
I would like to share with this committee what seems to be a real
success story. It is a classic example of how advocacy science can be
used to further an agenda. In 1993 Bull Trout numbers in Dave Creek
(which is a major stream between the East Fork and West Fork of the
Jarbidge River) was estimated at 251 fish. (Johnson and Weller1994) For
the next eight years management practices stayed the same; nothing
changed except for the Bull Trout listing. In 2001 a field
investigation of Dave Creek by Burton, Klott and Zoelick reported an
estimate of about 1000 Bull Trout or a 400% increase. On the surface
this might appear to be a remarkable recovery, but the fact of the
matter is it was two separate studies with two different objectives
that gathered the ``science'' to support their agenda at the time.
I would like to comment on the process that led up to the listing.
In 1994 a Bull Trout working group was formed with the goal of being
proactive, being ahead of the curve and trying to take actions that
would head off a possible listing under the Endangered Species Act. It
included numerous local, state, and federal agencies, affected ranchers
and other interested public. There were several meetings a year; a
number of problems identified; and projects undertaken to address the
concerns. It was done in a collaborative fashion with a spirit of
cooperation. That all came to an end on June 10, 1998 when the Jarbidge
Bull Trout were listed on an emergency basis to stifle the Jarbidge
Shovel Brigade. That was the end of the working group as far as I know
and consequently the effort of the working group was wasted.
Others will address the South Canyon Road situation so I will limit
my comments to effects on grazing. Listing under the Endangered Species
Act opens up a whole new array of possible law suits and legal action.
This past year we started to see the radical extremist environmental
groups begin to exploit the Act. We received a Notice of Intent to sue
for grazing on our private lands. The notice says ``your actions have
caused and will foreseeably continue to cause the killing, harming,
harassing, capturing and or other forms of `take' of listed threatened
Bull Trout''. The charge is without merit, but when threatened, we must
defend ourselves. The BLM and Forest Service also received notice of
intent to sue which would force them to deny us water for our cattle
which we have used for close to fifty (50) years. The extremist goal is
to end grazing on federal land in the West and the Endangered Species
Act has become the weapon of choice because it lends itself to
harassment and opportunities for lawsuits.
We have and will continue to cooperate fully with the land
management agencies to protect natural resources including Bull Trout.
For example, the biological assessment for ongoing activity stated that
spawning starts in September and since our cattle were present, that
fish may be adversely affected. Our grazing permit has a season of use
from July to October. We asked the Forest Service to modify our permit
so we would remove cattle from the allotment by September 1 thereby
limiting the possibility of conflict. They would not modify our permit,
but did make the change in our annual operating plan.
The burden from redundant over regulation on ranchers speaks to the
socio-economic impacts caused by the listing. We have been in
compliance with the rules and regulations and are meeting the standards
so this is not about protecting the fish. It is about abuse of process
with the purposeful intent to damage private citizens.
The upper end of the Jarbidge River Watershed is wilderness. The
lower is Wilderness study area, wild and scenic river and ACEC ( area
of critical environmental concern) for Big Horn sheep so it receives
layer upon layer of restrictions and protection. The streams have been
evaluated for PFC and are in properly functioning condition. In
addition there are water quality standards set by DEQ (Department of
Environmental Quality). For grazing, we also have to meet standards and
guidelines as well as utilization levels on upland vegetation as well
as riparian forage and shrubs.
To add the full weight of regulation provided for in the Endangered
Species Act is overkill. Most troubling is the additional avenues of
harassment it opens for radical environmentalists dedicated to ending
livestock grazing in the West.
In conclusion, is the Jarbidge River population of Bull Trout truly
threatened--probably not. Should it be delisted--most definitely.
Should the act be amended to require peer review science and to prevent
many of the abuses that the law currently allows, again--most
definitely.
Thank you for allowing me to testify. Are there any questions?
______
Mr. Gibbons. Mr. Brackett, I want to thank you again for
coming all the way down to Elko to testify. You are from
Rogerson, Idaho, and many of us as we listen to you understand
now that the ESA, Endangered Species Act, is not just a problem
here in Nevada but it is a problem universally around the West
in particular. I do appreciate the fact that you have brought
to us the stories of your family.
I'm being asked by the reporter here to take a little bit
of a break so that he can rest his fingers. So when we come
back, we'll ask a few questions, but we would like to take
about a 10-minute break right now.
[recess.]
Mr. Gibbons. This Resource Committee hearing will come back
to order.
I'd like to begin now with a few questions for this panel
of witnesses that I have. I'd like to begin with Mr. Brackett
and ask him, because he's testifying as to the fact of threats,
litigation, restrictions, and if you would elaborate for us:
What have they forced you to do on your private property with
regard to these restrictions and lawsuits?
Mr. Brackett. I think, you know--to preface my answer, you
mentioned in your opening remarks, and it's been noted several
other times, the grazing wasn't a problem, grazing wasn't an
issue in the listing. As far as our private land, we have
continued to develop offstream water to restrict access on the
riparian areas, implement better or more managed grazing
systems, rotation deferred.
As far as what we are being forced to do, we don't know
yet. We got the 60-day notice of intent to sue, and there
hasn't been a follow-up on that.
Mr. Gibbons. What group has given you notice to file suit?
Mr. Brackett. Western Watersheds and High Desert.
Mr. Gibbons. These are environmental groups?
Mr. Brackett. They are.
Mr. Gibbons. The issue of bull trout, obviously, there must
be bull trout on your private property; is that correct?
Mr. Brackett. They are not on my private--well, no, they
are not on my private property. They are adjacent on my
brother's private property on Dave Creek.
Mr. Gibbons. Your brother's ranch there on Dave Creek?
Mr. Brackett. We have some private property that is in the
Dave Creek watershed that drains into Dave Creek.
Mr. Gibbons. Does he graze cattle?
Mr. Brackett. He does.
Mr. Gibbons. Does he graze cattle on the property that is
in question with the bull trout?
Mr. Brackett. He does, and he has, and the family has for
over 50 years.
Mr. Gibbons. And yet, there is a substantial population of
bull trout in the area?
Mr. Brackett. That's what the surveys show. That's what
we're being told.
Mr. Gibbons. So the conclusion would be that the grazing
and population of the bull trout have minimal impact with each
other?
Mr. Brackett. I think that would be a fair conclusion. Up
until this time it's been compatible.
Mr. Gibbons. I appreciate that.
Mr. Trafton, I certainly recognize the good work your
organization has done with regard to building the bridge and
the money you have contributed to the population of bull trout.
Nevada Division of Wildlife has now found bull trout above the
Jack Creek bridge that you worked on. And I think that's good.
I think that's the kind of action that will help with regard to
the bull trout.
I do have a second comment to make, and I don't know if any
of the citizens here in the audience have read your written
statement. I know I have. And I would only make one little
recommendation about the attitude of the written words that are
in there. They are not helpful to working together. They appear
confrontational and caustic.
And I don't think that when you write a comment and put it
in the record, Congressional Record, that your organization,
and I don't believe that, unless that is your own personal
opinion, is best suited by a very confrontational approach. And
so I just don't think that it's in the best interests to come
up with a very caustic written statement. It's not helpful in
terms of being able to facilitate working together. A very
confrontational attitude develops, and I would just make that
about your written testimony. Although it is going to be
included in the record. I would just make that suggestion for
you in the future when you do this.
I wanted to ask you a question. You have 130,000 members.
In how many states?
Mr. Trafton. All 50.
Mr. Gibbons. All 50 states. Is Trout Unlimited involved
with the endangered Atlantic sturgeon in the Potomac River?
Mr. Trafton. We are not. They are not a trout.
Mr. Gibbons. But it's a fish.
Mr. Trafton. It's a fish, yes.
Mr. Gibbons. And you said that you were interested in all
fish.
Mr. Trafton. I said we were interested in America's trout
and salmon resources and their watersheds.
Mr. Gibbons. If you look at this map up here, Mr. Trafton--
and I don't know, you are not a biologist, I'm not a biologist,
I'm a geologist--the canyon is 1500 feet wide, it's 1200 feet
deep, and over the last hundred years, I don't know how many
hundred thousand tons of soil have been washed down that canyon
through the sediment in that stream. There was no road there,
but it's a natural phenomena. Sediment deposition is not
necessarily a road problem. Would you agree with that?
Mr. Trafton. I would.
Mr. Gibbons. So it isn't necessarily the road being a
problem up there.
Mr. Trafton. It's not necessarily the road being the
problem, and I don't think we ever said that the road was the
only problem that these fish face.
Mr. Gibbons. I just wanted to make sure that you didn't
list the problem as being the road because in your testimony it
was the maintenance of the road that you indicated.
Mr. Trafton. If I may clarify on a couple points. I
mentioned the road is a problem because in the letter that I
received inviting me to this testimony, I was specifically
asked to comment on what our involvement in the listing process
has been, and our involvement has been specifically involved in
the road. So that's why I concentrate some remarks on that
aspect of the problems facing bull trout.
I should also say, just for the record, in reference to
your suggestion that I be less caustic, personally I felt that
my statement was probably not as caustic as some of the others
that were given.
No. 2, just for the record for the people who don't
necessarily know what the difference between my written
statement and my oral statement was, it was a difference of
about four words. So what I wrote and what I said were exactly
the same thing, and there's no difference, and I think that's
an important distinction for everyone to know.
Mr. Gibbons. Well, it's how it's taken, and the four words
can be significant in meaning. I just wanted to bring that to
your attention.
Dr. Murphy, what's your opinion with regard to rarity as
you heard Mr. Weller talk about as a cause or noncause for
simply listing a species as endangered or threatened?
Mr. Murphy. There's no question that rare species are in
the forefront of listing decisions. There's also no question
that our footprint on this earth is so substantial that all
species rare and common are being impacted by them. I know that
you have expressed interest in other circumstances regarding
the expansion of weeds across the West, great scourge in the
state of Nevada compromising our aquatic resources and so on.
It may be that that ends up being the biggest threat to all
species in the state of Nevada at one point or another, rare
and common.
It certainly is appropriate for us to recognize that some
species have exceedingly narrow distributions, and there is
literally nothing we can do to expand those distributions.
Glacial relics like this species includes a listed butterfly in
Colorado which is found only above 13,000 feet on the northeast
slopes of Mount Uncompahgre. That species is being squeezed off
the top of the mountain by climate change, and we are likely to
lose that species. The Service decided to list that species and
this species, invoking not only the rarity but the specifics of
perceived threats.
Mr. Gibbons. Let me ask a clarification of your statement
because you said multistate distributions. Is there not a
multistate distribution for the bull trout?
Mr. Murphy. Well, I try to be very careful. The Jarbidge
bull trout is a Nevada species. The listing in the coterminous
48 states of a number of the DPS's or distinct population
segments is of course a multistate challenge.
Mr. Gibbons. Let me ask about the recovery, recovery plan
for this. If the species habitat for the bull trout is
principally, as you can see by the map up there, within a
wilderness area that is very exclusive of most changes, I mean,
it would be very difficult to change the habitat in that area
by man, what recommendations would you have to improve a
habitat that's in a wilderness area that is supposed to be
untrammeled by man?
Mr. Murphy. Well, as I pointed out in my written testimony,
I'm afraid that we fall far short of where we would like to be
in terms of an information base on this species. I'm not sure
we know exactly what the needs are in terms of gravel size,
large woody debris and all that goes with it.
It's very clear that a highly focused research agenda
coupled with an adaptive management plan where we start to
amend streams where necessary to respond to what we learn about
this species and a much more rigorous monitoring scheme frankly
than we have employed previously, could add up to pushing this
animal to the extent that we can recover it. We can't look for
the species to appear in the Independence Mountains and the
Pequots. It is going to be a species in the Jarbidge
Wilderness.
However, I think we can do things to secure this species.
The only sad part of this process is I believe that the listing
would have been unnecessary had the kind of cooperative
ventures that have gone on elsewhere in this state been
initiated before 1998, and this may be a model for how we don't
want to deal with out incipient endangered species. I see no
reason why a state this large with this much open space, this
much Federal land has to suffer from Federal listings of
species when stakeholders are so concerned about many of these
species. Our capacity be able to put good science on the ground
is there, and the land that resource management agencies do
have the tools to be able to protect these species.
Mr. Gibbons. Let me ask if you would do this for the
Committee based on your experience. Would you submit to us your
suggested language change for science, how it should be applied
to the listing of an endangered species?
Mr. Murphy. I'll struggle with that job description.
Mr. Gibbons. You understand what we're trying to get at?
You actually said that it should be science. Science is very
vague in many cases and how it should be applied and what we
understand.
Mr. Murphy. I think we're experiencing here, in deference
to both Trout Unlimited and Mr. Weller, that it's not just
using the best available science but it's finding a way to
interpret parsimoniously that information. Laying those data on
the table aren't enough.
Mr. Gibbons. That is why I'm asking how the science is to
be interpreted. In other words, how is it applied and what
science is needed. I think we have to be very specific because
being vague in general has led us down this path to where now
sometimes we see abuses in some cases.
Mr. Murphy. Those of us who struggled with the Endangered
Species Act believe the Congress left this area specifically
vague so that there would be alternatives offered up to the
agencies in invoking this statute. But as you pointed out
earlier, small butterflies stopping landowners from carrying
out otherwise lawful activities probably were not in the minds
of the signatories who handed the legislation Christmas eve to
President Nixon.
Mr. Gibbons. Having read the Committee reports in 1973 on
this issue, I can say that their idea was not the application
of the endangered species as we see it today. It was to save
the grizzly, it was to save the bald eagle and other larger
species, not down to the endangered Steamboat buckwheat grass
blade, or a small butterfly in some other area.
Mr. Murphy. Those are the exact words of Senator Goldwater
in 1974.
Mr. Gibbons. Well, that was 1 year after it was enacted. So
I can tell you, I wasn't there, but I have read them. And I
agree with you on that.
One final question, Dr. Murphy, and that would be: Do you
know any organization, whether private or public, that has
studied the bull trout in this area to the degree and depth
that the Nevada Department of Wildlife has?
Mr. Murphy. I can't answer that because I haven't seen the
full record that the Fish and Wildlife Service reviewed in its
listing package, but there is no question that the strongest
presentation of data was that by NDOW in its sequence of three
reports from 1990 to 1999. Now with that I'd like to add a
caveat that one of the biggest shortcomings in the Endangered
Species Act implementation that we have is the application of
data in recovery processes, in deciding the fate of private
lands under HCP's, and it's a lack of reliable data that often
compromise us. The problem with the data set is not that there
aren't data, but that the data have not been collected in
experimental framework that allows the strongest possible
conclusions of all sorts to be drawn from it, No. 1.
And No. 2, we really lack a long time series. And you
remember part of the argument here is not just how many trout
but whether they are trending down or frankly whether they are
trending up. And we just simply can't draw those conclusions
from the current data base.
Mr. Gibbons. Well, that's one of the problems with the
listing actually because you don't have the population trends
in the listing aspect, let alone the delisting, and that has
led us to this point as well.
Let me go talk to Mr. Weller and ask him a question. When
did the State of Nevada begin, and you said you have actually
done some of the studies and work in this area on the bull
trout, when did the State of Nevada begin looking at this fish?
Mr. Weller. Well, we have anecdotal records from clear back
in the early 50's shortly after the then Department of Fish and
Game was created. And we did that in conjunction with normal
biological monitoring in the area. So we do have some. And I
agree, there is not a lot of rigor in that data, but there is
data from clear back as early as 1954.
Mr. Gibbons. Have population trends been part of that data?
Mr. Weller. Again, I would agree with Dennis, there is--as
a management agency, we are bound by what we are able to do. We
do not do research rigorous type investigations. We do
management type investigations.
And his point is well taken. The amount or the integrity of
that data could come under question because it is not done to
exacting statistical levels. But it is adequate for management,
and that is what we do.
To continue, I guess I would say that we have had that
anecdotal information and data that we have gathered clear back
into the 50's, but we realize that there was an issue coming
here in the mid '80's and started an intensive look at the fish
and used that look that culminated in the report of 1994 to
summarize, to try to encapsulate that trend based on old. We,
for instance, went back to old sites where we had contacted
fish in the 50's and re-replicated those surveys. And that sort
of thing from a management standpoint, our intent was to
determine in fact are we in fact on a downward trend in this
fish. We didn't see that.
I would say also as we gotten deeper embroiled in this
whole process, we have refined our methods significantly, going
to the literature, going to research to find better ways of
looking for fish, more intensively and extending, for instance,
our sample, the intervals, the intensity of our work to try to
improve that. As we have done that over the years, over the
last several years, we have been able to actually confirm our
data and enlarge our estimates and gain more comfort with our
estimates.
Mr. Gibbons. Would you believe or would you agree that
probably some status of a species, either prethreatened or
preendangered that would permit a recognition of the need to
study something would be a better way to force a scientific
evaluation over a period of time rather than jumping head long
into the listing of it as threatened and saying, well, we don't
have the data but we'll leave it on the sidelines? What I'm
saying is we need to look at the science before we list and
make some sort of a recommendation to a species that is
entitled to looking at science and data before we go forward
with the process of listing it. That would be my question.
Mr. Weller. Quite frankly, Congressman, that is exactly
what we tried to do. We saw this on the horizon. We saw it was
coming. West wide in the basin we knew we had the southern most
distribution of bull trout, and we knew there were going to be
under a lot of scrutiny. So we tried to establish that prior to
that. We did collect data. And we did present that data to the
Service, and we feel it was not--it was ignored.
Mr. Gibbons. Let me ask a question. Does the Endangered
Species Act itself listing, current listing, restrict, inhibit
or otherwise obstruct any of the data collection and studying
that you would do, normally do?
Mr. Weller. As we have described earlier, when a species
becomes listed, you step into a joint jurisdictional role for
that species. Prior to that we had sole jurisdiction as the
State of Nevada. Fish belonged to the people of the State of
Nevada, we're that agency by law required to manage them. As
the fish is listed we step into a joint jurisdictional role. We
still have a role, but so does the Service.
And now we fall under the auspices of the Endangered
Species Act, and we have section 10 take requirements. We have
section 7 consultation requirements. We have the potential
funding sometimes of section 6 funding we can pull into that.
So there are those issues that come into effect very
definitely. All of a sudden we're--and quite frankly, we're
answering to a new schoolmaster here.
Mr. Gibbons. Well, where is your agency currently at with
regard to the bull trout management plan?
Mr. Weller. The Division of Wildlife developed a management
plan, it's been referenced a few times, back in 1990. The plan
was never truly gone through. It had never truly gone through a
formal process, but we have that plan in place. The plan is
currently in a state of revision bringing it up to date with
our current knowledge base.
But we realized in 1990 we had to have some--and what the
species management plan does for us is give us a working
document. It's our document as to what, how we value the fish,
where we're going with it. And so that plan has been in
existence all along. And I would say that the majority of work
that we have done on the bull trout since the whole issue began
is tied directly to that management plan.
Mr. Gibbons. If I look at the southern exposure, the
southern distribution of the bull trout, and the types of
environment and habitat for the bull trout, is there any way to
expand the area of the habitat and guarantee us or at least
provide us with an assurance that we will expand the
population? In other words, if the habitat area is the
restricting part of the limited numbers of bull trout in the
area, obviously, you are going to need to expand the habitat.
Can you physically theoretically expand the bull trout
habitat in this area to eliminate that one restriction?
Mr. Weller. Again, we're back to the issue of nodal versus
focal habitats. The critical habitat for bull trout are the
focal habitats. Those are those habitats that are required for
reproduction and rearing.
The lower focal type or nodal type habitats lower down in
the drainage, the majority of it are critical. I'm not
demeaning them at all. They are very important.
And there is a role of the population. The population needs
those nodal habitats as well as the focal ones. However, they
are not the critical habitats that are going to cause the
demise of the fish.
To answer your question, I believe that there's very little
opportunity to enlarge focal habitats. Those in the dark blue
on the map are areas that are very very exacting. The fish is a
glacial relic, requires cold water, requires certain slopes,
requires complexity of habitat. Those areas are there, they are
established, and they are occupied.
And so I would say there is very little opportunity to
increase focal habitats. Nodal habitats, there are some issues.
We could deal with road issues down below. And we could do some
better work in best management practices, et cetera, that could
help those nodal habitats. And I would recommend that we do do
that.
But my issue becomes the threats. There are no threats to
the primary areas where they need to be. So we really don't
have opportunities there.
Mr. Gibbons. You indicated that there was no serious
species competition within the stream itself.
Mr. Weller. That's correct.
Mr. Gibbons. So unfortunately, Judge Jones in Oregon didn't
think so. He felt that there was some competition of species
there as well. I'm not sure where that science came from. Maybe
he was a fisherman. I can only guess. Maybe he visited the
area.
Mr. Weller. I wouldn't discount that there is no
competition of fish species in the river. But they are all
evolved. They are natural species. Those are the fish that have
been there all along, and the bull trout have persisted in
spite of that competition. Bull trout are tough little fish.
They do OK by themselves.
Mr. Gibbons. Let me ask the same question I asked Professor
Murphy, if you wouldn't mind putting together a recommendation
of how the law should apply the science to the listing of an
endangered species and provide that to me, I would appreciate
that.
Mr. Weller. I can do that.
Mr. Gibbons. I know it is a challenge.
Mr. Weller. Very definitely.
Mr. Gibbons. It is a big case. I would imagine stochastic
events up there in the focal habitat area are probably, as you
say, the biggest threat to the survival of this species, much
of which we can't control. If you had an enormous fire up there
that denuded the surface, erosion would run down, choke the
stream with sediment, and you could have a terrible disaster on
the species. Those types of situations are beyond the control
of human beings. We have no means by which we can forecast nor
prevent something like that.
As you heard, the county is having a difficult time, as
well as others, in the fire fighting and preparation,
prevention as well as fire fighting, actual fire fighting
capability in the area. I'm very concerned that some of the
byproduct of listing is actually more detrimental to the future
of a species in terms of restricting our ability to thin forest
or to prevent forest fires, thereby causing more damage than we
would be preventing it.
Mr. Weller. I think your point that you made earlier was
very well taken. I had the opportunity with my family to visit
Mount Saint Helens this last year, and I would point out that
the seven peaks of the Jarbidge are volcanic peaks. Indeed,
there is volcanic activity there. When I looked at Mount Saint
Helens, I realized what a stochastic event indeed is. Or
meteor, as you mentioned, were to happen, it all becomes a moot
point.
So we live under that threat. There is always that fear
that that could happen.
If you look at the map, you see a distribution in two major
drainages, and these two drainages are separated by some pretty
rugged country. There is no question a good fire could break
out at the top and sweep the whole thing, or one of the seven
peaks could erupt and take the whole thing out. That could
happen.
But what we have to depend on, I believe, as we have looked
at this, is the fact that there are--they are individual
populations spread throughout those two drainages. If indeed a
fire were to ravage, heaven forbid, the west fork of the
Jarbidge, we have the metapopulation potential where fish from
the east fork could recolonize the west fork. We could do that
if it got to that.
I also have discovered over the years--.
Mr. Gibbons. Could you do that under the Endangered Species
Act?
Mr. Weller. It would be a challenge. We would have to do a
lot of consultation, but I think it can be done in the spirit
of cooperation, as mentioned.
But I was going to say, with my number of years in
fisheries biology, I have been taken back a number of times at
the resiliency and the strength of fish populations. Fish
survive fires. They are not totally gutted by a fire. I have
seen them do it a number of times. Something like a bull trout
in a high drainage protected by rock could very well survive a
fire. And their population numbers respond very rapidly in
proper conditions.
The other thing I have noticed is the quick response of
vegetation after fires.
So I would say don't discount the fact that just the
natural process will take care of itself. There is no doubt
there have been fires in the Jarbidge in the past, major fires
in the past, and the fish has persisted, and I would say that
we shouldn't underestimate that ability of the fish to do that.
So I would add those two things. We have the ability to
respond because we are here. The systems are well protected,
the populations are diverse and spread, and I'm not going to
say it couldn't happen, but it's not the big fear that we would
think, I don't think.
Mr. Gibbons. Well, I wanted to thank all of you for your
very enlightened testimony. It's certainly very helpful, very
valuable to this Committee because our challenge is great. Our
challenge is to come up how to make the ESA work before the
Endangered Species Act destroys itself through misapplication
or through abuse or through inability to move forward as
sometimes is the case.
Many times we have got species out there that are listed
with just a label on them, and nothing is happening, no plans,
there's no work being done, no studies being undertaken, and
simply listing a species as endangered or threatened doesn't by
itself save the species. I think that's the important part that
we all have to look at.
Trout Unlimited has done a great thing in building a bridge
to help the species get to the focal areas. That's very
important.
But it is actions rather than words, and more so it's being
able to work together on something like this rather than
threaten lawsuits and bring everybody to a standstill while we
spend valuable resources, valuable money, and oftentimes
bankrupting people, in an effort to do something that I think
collaboration and working ahead of time would have prevented
and worked well with.
I'm not going to ask any more questions. I did want to say
as we close here, to everybody here, the purpose of this
meeting was to bring out the Endangered Species Act in terms of
an educational aspect to allow you to see how it's applied,
some of the misinformation that is out there, and to learn a
little bit more about it. It's also to have this Committee
understand from the testimony of these people and other
witnesses that have been here a better understanding of how to
move the Endangered Species Act itself into a position that is
intended to do what it is supposed to do and that is to help
recover species, and we certainly want to do that.
This brings us to the end of our hearing, and I did want to
once again thank everybody, especially the audience who has sat
through this very patiently for 3 hours as if it were a college
course, and I hope you have gained as much as I have from this
hearing.
And with that, I want to thank each and every one of our
witnesses today as well for their participation and bring this
hearing to a close. Thank you, gentlemen.
[Applause.]
[Whereupon, at 3:56 p.m., the Committee was adjourned.]
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