Norm Dicks

Mr. DICKS

Mr. DICKS. No, I have not. But I have had contact with the top level officials of the Fish and Wildlife Service.

Mr. DICKS. I appreciate the gentleman yielding to me. Mr. Chairman, I would again point out that the designation of critical habitat has very significant meaning on Federal land, but when critical habitat is designated on private land, all it means is if you have to get a Federal permit, they have to take into account that you have got a murrelelet population and habitat on this particular land, only if there is a Federal nexus. Having said that, there is also a way to deal with the problem of the fact that you have murrelets on the land. That is to do a habitat conservation plan. When you do the habitat conservation plan, and I would take umbrage at what has just been said about this, the company involved here did not negotiate in good faith with the Fish and Wildlife Service. I have talked to the people that were there. They said they made it very clear when they came through the door that they were interested in filing a suit on taking, a constitutional taking, and they were never willing to negotiate.

Mr. DICKS. Mr. Chairman, will the gentleman yield?

Mr. DICKS. Mr. Chairman, I would again point out that there is a statement of the administration saying they strongly object to the language and provision concerning the designation of critical habitat to the endangered marbled murrelet on private lands in California. The provision adopted by the committee would adversely affect the administration's effort to achieve balanced implementation of the critical habitat designation for this species, and would set a dangerous and unsupportable precedent that would lead to costly and time-consuming litigation. I want the gentleman to know that the administration again strongly, as he knows, strongly opposes this rider.

Mr. DICKS. Mr. Chairman, will the gentleman yield?

Mr. DICKS. Mr. Chairman, I appreciate the gentleman's support and again reiterate what underlies what the gentleman said. All the company has to do is go and sit down with the Fish and Wildlife Service. They work out a multispecies habitat conservation plan, and it takes some work to do it, there is no doubt about it, but there is a lawful way for them to have certainty, to protect the jobs, and that is what most responsible companies would do. But to come here with this amendment which undermines a court decision, undermines the Endangered Species Act and frankly is inappropriate on this particular bill, I just think is a mistake, and I appreciate the gentleman's support.

Mr. DICKS. Mr. Chairman, will the gentleman yield?

Mr. DICKS. Mr. Chairman, if the gentleman will continued to yield, on this one point about this vendetta, here is a letter written by David E. Blockstein, Ph.D. and Chair of the Ornithological Society: As the umbrella organization representing this Nation's 5000 ornithologists and students of bird life, the Ornithological Council recognizes that we all have to play our part if our wildlife resources are to survive in the 21st century. Our members have spent many thousands of hours studying endangered and threatened species like the marbled murrelet. Much of this time has been contributed on a voluntary basis. The central finding of this work is that without habitat, our wildlife will not survive. Critical habitat designation is important because it provides direction to the Fish and Wildlife Service, if a private landowner applies for a Federal permit, such as an incidental take permit. By itself, critical habitat designation does not restrict action to the landowner. The Fish and Wildlife Service designates Federal lands for critical habitat first and will only designate private land as critical habitat if Federal lands are insufficient as in the case in northern California. If anything, the Fish and Wildlife Service has been too cautious when it comes to identifying critical habitat on nonFederal lands. The Riggs rider is wrong for the following reasons: By depriving the government of one of its most important tools in species protection, it drives up the cost of recovering the marbled murrelet and increases the probability of extinction. The Riggs rider sets a dangerous precedent that could be used to harm the recovery of other species. Other States in the Pacific northwest and elsewhere have learned to live with the law and are trying to protect their wildlife species. It would be unfair to exempt northern California. Other Members of Congress have avoided legislating through appropriations riders; Congressman Riggs should not have special privileges. Please vote to delete the Riggs rider from the interior appropriations bill. David E. Blockstein, Chairman of the Ornithological Council. That is not politicians speaking. Those are some of the Nation's finest scientists.

Mr. DICKS. Mr. Chairman, will the gentlewoman yield?

Mr. DICKS. Mr. Chairman, I wanted to say to my two colleagues over there, there is a way for Mr. Hurwitz to get a certain program where he can continue to harvest on his entire property, and that is to do a multispecies HCP like every other responsible timber company is doing in the Northwest. But he will not do it because he wants to get special legislation either to exempt him or he wants to take it to court and raise a taking. The reason this land is so important on this private property is because it has got the most nesting murrelets in the entire northern California area. That is why the judge, the scientists and everyone else said it is critical habitat and that is why we have to protect it. Now, that makes sense to me, and I appreciate the gentlewoman's yielding.

Mr. DICKS. Mr. Chairman, will the gentlewoman yield?

Mr. DICKS. Mr. Chairman, I want to point out to my colleagues the reason that critical habitat was designated on private lands, and, by the way, in Washington, Oregon, and northern California it was only 1 percent of the lands, and it is because suitable nesting habitat on Pacific Lumber Co. lands in Humboldt County is the only available nesting habitat for the southern portion of zone 4. It is imperative to protect marbled murrelet habitat on corporate forest lands in northern California, because these lands provide a biological link for the murrelet populations between Redwood National Park to the north and the State redwood parks to the south. This is not being done in any mean- spirited way. It is being done to protect the marbled murrelet. I was somewhat amazed by my friend from California suggesting that the murrelet, because it is surviving in Alaska, that we are not concerned about it. You have to understand under the law we have to protect these species throughout their range, and that is why you have got to protect them in northern California, Oregon, Washington, and Alaska. That is our law. I would say to my colleague from Alaska, he is chairman of the committee. We have been waiting for him to come out with his amended bill. I understand that maybe the leadership on the majority side has had second thoughts about it, but I got to tell you this: To get up here today and say unequivocally that he does not support the Endangered Species Act I think is shocking. The Endangered Species Act is important to the future of this country, it is important to our biological diversity, it is important to the future of mankind. I think that we ought to think very, very carefully here today about a special exemption.

Mr. DICKS. I will get the gentleman extra time. I promise the gentleman I will get him extra time if he will yield. I will ask for unanimous consent.

Mr. DICKS. Mr. Chairman, will the gentleman yield?

Mr. DICKS. Mr. Chairman, I rise to offer an amendment to H.R. 3662, the fiscal year 1997 Interior appropriations bill. Specifically, my amendment strikes section 116 of the general provisions of title I of the bill, eliminating language that withholds funding and restricts the U.S. Fish and Wildlife Service from designating critical habitat on certain private lands in northern California. I believe that section 116 is an ill-advised provision for several reasons, and that it is inappropriate to include this language on the fiscal year 1997 Interior appropriations bill. First of all, the provision allows for the weakening of the Endangered Species Act [ESA]. The gentleman from California, who is responsible for this provision being included in the bill might want you to believe that all this amendment does is withhold funding; but in fact it prevents the U.S. Fish and Wildlife Service from carrying out its statutory and regulatory responsibilities under the Endangered Species Act. The act allows for the Service to designate critical habitat for species listed as ``threatened or endangered.'' Section 4(b)(2) of the Endangered Species Act specifically states: The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best science available and after taking into consideration the economic impact, and any other relevant impact, specifying any particular areas as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. Critical habitat designation is the one area of the Endangered Species Act where economic impacts are clearly considered, and I believe that is what fully occurred in this circumstance. Mr. Chairman, I want to say to my colleagues, there are three major reasons why I am opposed to the Riggs amendment. First of all, Mr. Chairman, I believe that we should be supporting the Endangered Species Act, not undermining it. Critical habitat, when we designate it on private land, all it does is require one on private lands to come in, if you are going to take a bird or a species, in this case the marbled murrelet, and get an incidental take permit. The way to do that is by filing a habitat conservation plan. That is how you get out of jail. You do not get out of jail by coming to the U.S. Congress and offering an amendment that makes it possible for you, while everybody else is complying with this law, to get a special deal. That is what I object to here. Second, the marbled murrelet in northern California had declined in population from 60,000 down to about 6,000. The reason it has declined is because its habitat, old growth redwood trees, have been cut down in that area in a very significant way. Third, as I mentioned, there is a way to get out of the Endangered Species Act, and that is to enter into a multispecies HCP. In this case, Pacific Lumber, who has most of the territory here, about 40,000 acres, did not negotiate in good faith with the Fish and Wildlife Service to get a multispecies HCP. Up in my State of Washington, I sat down with Murray Pacific, Weyerhauser, Plum Creek, and the major companies in my area. I said, ``Gentleman, you are going to have to work with the Fish and Wildlife Service. You are going to have to get an HCP.'' Those companies are up there negotiating these HCP's. They get 100 years of certainty, they get to go into their land and do the harvesting; yet, they have to make some set-asides for conservation purposes, be it is the right thing to do. It is a win-win. What am I going to do if the Riggs amendment is enacted? Then all these companies are going to come to me and say, Norm, why do you not offer an amendment to take me out from underneath the Endangered Species Act? This is something we have never done. I just think it would be a tragic mistake in this instance to do it. That is why I am offering this amendment to strike the Riggs amendment, and I urge my colleagues to support this amendment.

Mr. DICKS. Mr. Chairman, I offer an amendment.

Mr. DICKS. Mr. Chairman, I take back my time. The gentleman knows fully if they have a species on their property, it is their responsibility. They do not have to do it, but if they do not do it, they do not get an incidental take permit. If they want to risk taking a species without an incidental take permit, then they will violate the Endangered Species Act. The way to do it is to go in and enter into an agreement. Now, in many cases, small landowners are given, as a matter of course, an incidental take permit. It is the large landowner that is asked to do the multispecies HCP. In this case, the company involved did not negotiate in good faith to get a multispecies HCP. If they had done that and they were willing to do that on all the lands that they own in this area that the gentleman's amendment affects, I am told by the Fish and Wildlife Service that they would have bent over backwards to try to enter into such an agreement. The facts are that they came in and made it very clear from the very first instant that what they wanted to do was to file a lawsuit that would raise the issue of a constitutional taking. That is, in fact, what they did. And in fact the Federal judge, Judge Rothstein, is the one who directed the Fish and Wildlife Service to designate critical habitat. In this instance, 78 percent of the critical habitat was on Federal lands, and only 1 percent was on the private lands. In my judgment, the only reason it is on the private land is because the area involved is crucial to the survival of the spotted owl in that area. So I would just say to the gentleman from California, not only in this amendment is he undermining the Endangered Species Act, he is also threatening the survival of the marbled murrelet. There are a lot of fishermen who have written me saying, please oppose the Riggs amendment. They are fearful that, if we do not protect the marbled murrelet and it becomes endangered rather than threatened under the Federal law, even more onerous restrictions will be put on the fishermen in my colleague's area as well. Now, I sympathize with the gentleman from California. He and I have worked on things together in the past, but what I do not like here is what he is doing. By coming in here and getting a specific exemption, it is undermining all of the rest of us who are trying to get our private companies to do the right thing by entering into a multispecies HCP. That is what the gentleman should be doing, not coming here and undermining the Endangered Species Act, threatening the marbled murrelet and threatening the old growth in this particular area which is crucial to the survival of the marbled murrelet.

Mr. DICKS. I yield to the gentleman from California.

Mr. DICKS. Mr. Chairman, I yield myself 6 minutes. I would say to my distinguished friend from California that I, too, represent an area that has been as affected as any in the country by listings under the Endangered Species Act, and my approach has been to try to work with the private companies and the State of Washington in order to get them to enter into a multispecies habitat conservation plan, an agreement between the Fish and Wildlife Service and the private company to protect the species on the private property lands and to help in the conservation effort. For that, they get 100 years of certainty. Now, I checked yesterday with the Fish and Wildlife Service and asked them about the company involved here, and whether they had seriously attempted to negotiate a multispecies HCP, and the answer was a resounding no. Now, that is the way for the gentleman to solve his problem, to sit down with his company and with the Fish and Wildlife Service and try to get them to work out on a voluntary basis a multispecies HCP. That is how the Endangered Species Act allows one to get the incidental take permit that is necessary. Let me just also say to my friend from California, even with a critical habitat listing, the company still can log. All it cannot do is have a taking of a species that is either threatened or endangered, and so they can use this private property. I just want to make that point. If he is going to have a taking, the only way he can get around a taking is to have an incidental take permit. And the way one gets an incidental take permit, a large private landowner, is to do it by negotiating a multispecies HCP. I have worked with the Murray Pacific Co., Plum Creek, Weyerhaeuser, the major timber companies in the Northwest, to get them to do that. What the gentleman is doing today by walking into the full committee and offering an exemption for one large lumber company in his district is not only undermining the Endangered Species Act, but he is undermining my efforts and the efforts of other Members of Congress who are trying to work with their private timber companies to get them to do these multispecies HCP's. I am sure the gentleman has a different interpretation of his intent, but the bottom line is, this is what is occurring. So I am urging my colleagues today to join with me in striking out the Riggs amendment, and I urge the gentleman to go back and do it the old-fashioned way, to sit down and get a multispecies HCP through the Fish and Wildlife Service.

Mr. DICKS. Mr. Chairman, I yield 3 minutes to the distinguished gentleman from Colorado [Mr. Skaggs].

Mr. DICKS. Mr. Chairman, will the gentleman yield?

Mr. DICKS. I do not think we should do it for those reasons. Let me also say to the gentleman, I think the important point here is that critical habitat----

Mr. DICKS. We could buy the headwaters redwoods that are so critical to this. But in this case, most of the land is Pacific Lumber Co. land. The gentleman is right. The other point the gentleman is right on, too, is that there was a Federal court that said you have got to issue critical habitat. So the Fish and Wildlife Service was directed by a court to do it. Also, Mr. Hurwitz was stopped from logging the rest of the old growth because of a Federal court decision.

Mr. DICKS. Mr. Chairman, if the gentleman will yield, I want to applaud the gentleman from California who has written on this subject and who has even suggested that maybe we could trade the massive $1.2 billion that we lost, or that the Federal Government lost because of the S&L that Mr. Hurwitz went bankrupt with.

Mr. DICKS

Mr. DICKS. Mr. Speaker, I appreciate my friend from California yielding time to me. I want to talk today about a rather complicated issue, and I am pleased that the rule allows us to consider this amendment. This is an issue that involves the continued existence of California's marbled murrelet. The marbled murrelet is a rare sea bird that nests in forests along the Pacific coast. It is a small bird that spends much of its time at sea feeding on fish. However, during certain crucial months each year it nests in California's coniferous forests. The marbled murrelet is listed as endangered under the California Endangered Species Act and threatened under the Federal Endangered Species Act. My colleague and member of the Committee on Appropriations, the gentleman from California [Mr. Riggs], has a rider on the Interior bill attached in committee last week which could lead to the extinction, unfortunately, of the California marbled murrelet. The Riggs amendment prohibits implementation of critical habitat designation under the Federal Endangered Species Act for the marbled murrelet. The rider would apply to most of the private lands in the northern coastal area of California that has been identified as critical habitat for the marbled murrelet. If critical habitat in this California area does not continue to be designated, there is strong likelihood of the marbled murrelet extinction in northern California, which will most likely affect the bird throughout its Pacific Northwest range. The Riggs amendment excludes from its coverage 3,000 acres commonly called the ``Headquarters Grove,'' but this exception does not include headwaters areas that are crucial for survival of the bird in California. For example, the exception does not include the Owl Creek Forest, a 440-acre stand of old growth coastal coniferous forest that contains a key 137-acre marbled murrelet nesting area. The Riggs amendment does not provide needed protection for private property because critical habitat designation does not stop private activities. Critical habitat designation on private land does not stop activities, but it results in more careful consideration before Federal agencies carry out, approve, or fund activities. Critical habitat designation impacts only Federal, not private, actions. For private land, critical habitat will come into consideration when the landowner seeks some Federal permit or approval, such as an incidental take permit. Moreover, while critical habitat designation may change the Fish and Wildlife Service's calculus in granting a take permit, it does not trigger the incidental take process. If marbled murrelets will not be injured or killed by logging or designating habitat, the logging can proceed without a permit. The marbled murrelet is dependent on little areas that remain. In California, over the past 150 years, we have taken and harvested much of the marbled murrelet's nesting habitat. The number of birds in California has dropped from an estimated historic population of 60,000 to only about 6,000. Because of the marbled murrelet's precarious situation, further destruction of its significant habitat makes extinction of the northern California population probable. The marbled murrelet has special nesting requirements. Every year the species loses a majority of its chicks to predation; therefore, it can nest successfully only where foliage is thick enough for the chicks to hide from predators. In addition, marbled murrelets do not build typical nests; instead, they lay eggs in natural depressions on tree limbs, so they require large limb structures. Critical habitat designation has focused on Federal land. In May 1996 critical habitat was designated for the marbled murrelet along the Pacific coast. Slightly over 1 percent of the designation occurred on private land, because the Fish and Wildlife Service worked to designate non-Federal lands as critical habitat only ``where Federal lands are limited or nonexistent and where non-Federal lands are essential for maintaining marbled murrelet populations and nesting habitats.'' A total of about 48,000 private acres were designated as critical habitat for the bird. The Riggs amendment applies to almost all this area, most of which is owned by the Pacific Lumber Co. The marbled murrelet draft recovery plan emphasizes the importance of these acres for marbled murrelet recovery. Suitable nesting habitat on Pacific Lumber Co. lands in Humboldt County, CA, is the only, and I underline that word, only, available nesting habitat for the southern portion of zone 4. This area is situated in a key area close to the coast with no Federal lands in the immediate area that are able to provide similar recovery distributions. That is why I am offering my amendment today, to strike this provision. I wanted to emphasize to my colleagues that there are remedies here. If we want to get around the designation of critical habitat, I should not say get around, but if we want to deal with it, what we should do is what I have asked the companies in my State and in the Northwest and in Washington State to do, and that is to enter into a multispecies habitat conservation plan with the Fish and Wildlife Service. Through doing a multispecies habitat conservation plan, a person can achieve 100 years of certainty on his lands. Now, yes, there is a negotiation and certain areas have to be protected on these private lands, but that is the way to proceed. If one gets a multispecies habitat conservation plan, then they are entitled to an incidental take permit, so that if there is a take on private lands there will be no Federal sanction. The companies in the State of Washington are entering into these agreements. Now, if my friend from California can walk in here into the Congress and overturn a Federal court decision which directed that critical habitat be designated and get relief for his individual company, then how am I to ask all of my companies to do the right thing, and that is to negotiate a multispecies HCP with the Federal Government? So if we do this, the administration has stated in their letter to all of us up here on this bill that they will veto the bill. Last year we got ourselves into trouble by giving in to these substantive riders on this bill. So I urge my colleagues to support my amendment today to strike this out. It is the right thing to do for the ESA. It is the right thing, I think, to do for the private companies because then it will force Pacific Lumber Co., which has not negotiated in good faith with the Fish and Wildlife Service, to establish a habitat conservation plan; that they cannot come here and get around this provision. My judgment is that they should go back, sit down with the Fish and Wildlife Service, and do what Murray Pacific, Weyerhaeuser, Plum Creek, and the major companies in my part of the world are doing, and that is negotiating a multispecies habitat conservation plan. So let us defeat the Riggs amendment and stand behind the Endangered Species Act. I might say to my colleagues on the other side of the aisle, Mr. Speaker, that this will be one of the most important environmental votes of this Congress.