While the ESA imposes certain responsibilities on the federal government to protect listed species, it also contains certain safeguards and places certain duties on the federal government to make sure that the ESA is administered within scientific and procedural parameters. For example, section 4 of the ESA requires that any listing of a species must be made on the basis of "the best scientific and commercial data available.” In addition, section 4 requires that if a species proposed for listing is not listed within one year, the proposal must be withdrawn. (The ESA allows for a six month extension in certain circumstances, but if the proposal is not finalized within that period, it must also be withdrawn.)

The ESA also contains a number of procedural safeguards to protect the rights of people who might be affected by an ESA action. For example, section 4 requires 60 days notice of proposed listings, together with a requirement that such proposal be published in a local newspaper. In addition, if anyone requests a hearing on the proposal, one must be held.

Such provisions at least try to ensure that the ESA is administered fairly, that ESA actions are taken only on the basis that they are scientifically justified, and that affected people have ample opportunity to present new evidence or make their views known before action is taken. Thus, Congress has sought to see that rights of affected individuals are protected at the same time that species are protected from becoming extinct. The obligations placed on the federal government by these substantive and procedural provisions are no less than any other obligations on the government to protect species. The government should be held accountable to the people regulated under the ESA to the same extent that species are protected.

The federal courts have changed all of that. After Bennett, affected people within the Ninth Circuit have no way to hold the federal government accountable for regulatory excesses under the ESA. The federal government is free to act in any manner it wants in the name of the ESA, including the ability to flaunt the provisions of the ESA and trample the rights of farmers and ranchers with unfettered impunity. Since the area encompassed within the jurisdiction of the Ninth Circuit contains a significant number of the listed species and related conflicts, the problem caused by the courts is quite significant.

AFBF has experienced the problems caused by application of the Bennett decision firsthand. Our experience may serve to illustrate the problems faced by affected parties and the need for legislation like H.R. 3862 to correct them.

Our situation involves the proposed listing of five species of mollusks found in the middle reaches of the Snake River in Idaho. The stated impacts to our members were that the extensive farm and ranch interests in this area would be restricted in both the amount of water they could take from the River and also in the amount of crop protection materials they could use that might run off into the River.

The scientific data supporting listing was, in our view, quite weak. There was as much scientific information either opposing listing or creating uncertainty about the species as was

advanced to support the listing. The evidence clearly and incontrovertibly indicated that less than one percent of the potential habitat for these species had ever been surveyed for the species. Moreover, the expert hired by the Idaho Farm Bureau Federation twice conducted his own surveys for these species, and twice found them in areas where the government said they did not exist.

The ESA requires that listings be made on the basis of "the scientific and commercial data available." AFBF and the Idaho Farm Bureau Federation filed suit challenging the listings on the basis that there was no science to support the listings, and the listings were therefore in violation of the ESA.

We were not even able to get our case to the judge. Citing the Bennett decision, he dismissed our case for lack of standing, based solely on the fact that we were challenging ESA actions as going too far, rather than trying to extend the ESA by claiming that actions did not go far enough. Thus farmers and ranchers who had legitimate and basic questions with the manner in which these mollusks were listed, and whose livelihoods may be significantly impacted by their listing, were denied the right to protect their interests in court.

That is the problem that the courts have caused. People who have legitimate claims that government action is adversely impacting traditional personal interests of property and livelihood are foreclosed from the courts simply because they are on the wrong side of an issue.

But while people are foreclosed from challenging the ESA as going too far, those who challenge agency action as not going far enough to protect species are still filing lawsuits. Thus courts are only allowing one side of the issue to be heard, a situation even worse than not allowing a hearing on either side at all. Only allowing one side of an issue creates an inherent imbalance in the administration of the law whereby the government is only accountable to one side and not to the other. The inevitable result is that the government leans toward the side to which it is accountable to and ignores the side over which it has free rein.

Thus, the issue addressed by H. R. 3862 is one of fundamental fairness. It makes sure that all sides of an issue are heard, that the government is accountable for its actions to all affected parties, and that all parties have the right to have injuries redressed within the limits set by Article III of the Constitution.

The bill does not change the Constitutional rules of standing, nor can it. Article III of the Constitution, as articulated by the U.S. Supreme Court, contains certain basic requirements that all litigants must meet in order to be allowed to proceed in court. Such requirements include the existence of an actual or imminent injury that is caused by the activity at issue which can be redressed by the court. The bill does not seek to change these well-established rules of standing.

Rather, the bill seeks to clarify some of the elements of prudential or discretionary grounds upon which standing can be denied under the ESA. Courts like the Ninth Circuit have

misconstrued these elements to produce an inherently unfair result. Other courts may, and have, construed the ESA citizen suit standing provision differently, producing the anomalous result that people adversely impacted by the ESA can seek legal redress in some parts of the country but not in other parts. Legislative clarification is necessary and appropriate both to correct current problems and to provide the "legislative intent" that courts often seek in making similar types of decisions.

The fact that the Bennett case has been accepted for oral argument before the U.S. Supreme Court does not obviate the need for this legislation. In the first place, oral argument is not scheduled in this matter until November 13, and a decision is not likely for several months after that. Secondly, the federal respondents have argued in their brief before the Court that a decision can and should be made without consideration of the "zone of interest" issue that prompted the Court to take the case in the first place. If the Court accepts this reasoning, the problems that farmer and rancher ESA plaintiffs have in the area within the Ninth Circuit jurisdiction will remain, without having been addressed by the Supreme Court.

AFBF fully supports H.R. 3862. It provides a reasonable, uniform and timely solution to a problem that prevents an entire class of plaintiffs from protecting their interests against overzealous and overreaching government. It does so in a manner that does not seek to expand or change the Constitutional definition of standing. More importantly, it restores fundamental fairness to the judicial system, by providing equal judicial footing to people on both sides of the ESA. It restores balance in the judicial administration of the ESA. And finally, it provides legislative clarification to an issue that has been subject to various conflicting interpretations by the courts, thereby bringing needed uniformity to the question of who may sue under the ESA.

We thank the committee for holding a hearing on this important issue, and look forward to working with the committee to pass H.R. 3862.

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PREPARED STATEMENT OF NATIONAL ASSOCIATION OF HOME BUILDERS

The National Association of Home Builders (NAHB) represents more than 185,000 builders and associate member firms organized in approximately 850 affiliated state and local associations in all fifty states, the District of Columbia, and Puerto Rico. More than half of NAHB's builder members build less than 10 homes per year, and three-quarters of our builder members build less than 25 homes per year. NAHB is truly an association that represents small business.

As small business owners, home builders are often dramatically impacted by government regulations. There are perhaps no regulations, however, that have more profound implications for home builders than those which govern the use of private property. Similarly, there is perhaps no other small businessperson that is affected more keenly and more immediately by the regulation of private property. It follows, then, that that there is no small businessperson on whom the Endangered Species Act (ESA) places a greater potential burden.

It is for this reason that NAHB feels compelled to provide comments on the issue of judicial standing for individuals affected by critical habitat designations under the ESA, an issue that H.R. 3862, introduced by Rep. Helen Chenoweth (R-ID), attempts to address.

It is clear that a primary intent of H.R. 3862 is to effectively overturn a misguided decision made by the U.S. Court of Appeals for the Ninth Circuit, a decision which has dramatic and profound implications for landowners throughout the nation. Essentially, the Ninth Circuit ruled that only environmental groups, and other organizations and individuals who want to expand the reach of the ESA, have standing to file citizen suits under the Act. This means that regulated parties, such as home builders, who bear the burden of the ESA, would not have the opportunity to challenge in a court of law the U.S. Government's listing of species and designation of critical habitat, and the subsequent prohibitions on land use that accompany such determinations. Landowners would also be precluded from challenging the results of agency

consultations under Section 7, which can have dramatic impacts on property owners. Indeed, the Ninth Circuit has effectively closed the courthouse doors to regulated parties. In arriving at its decision, the court found that:

Given that the clear purpose of the ESA is to ensure the protection of endangered species, we conclude that suits by plaintiffs who are interested only in avoiding the burdens of that preservation effort “are more likely to frustrate than to further statutory objectives."

With its decision, the Ninth Circuit has for practical purposes nullified the ability of property owners to protect themselves from unlawful ESA regulation. This is a sweeping decision, with the potential of having severe consequences for property owners across the country. To provide some perspective on this decision's potential ramifications, a 1994 General Accounting Office report showed that 90% of the 781 species listed at that time as endangered or threatened under the ESA inhabit non-federal lands. Furthermore, of those species listed, 517 have over 60% of their total habitat on non-federal lands, covering tens of millions of acres of private property. Obviously, there are a lot of landowners who could see their investments get swallowed up as a result of a decision made by a Fish and Wildlife Service (the Service) bureaucrat -- landowners who would have no legal recourse to challenge that decision.

The burdens that the ESA places on owners of private land are by no means hypothetical. There are numerous examples that can be cited, sometimes tragic, of substantial losses of private property brought on by overzealous enforcement of the ESA. Perhaps the most well-known of these unfortunate occurrences is that of the 28 families in Riverside County who lost their homes to a wildfire. These families had the misfortune of residing in the same general area as the endangered Stephens Kangaroo Rat. In their efforts to protect the "K-rat," the Service prohibited the clearing of fire breaks around their property, as it would ostensibly have disturbed the K-rat's habitat, using threats of civil, and even criminal, penalites. Those homeowners who defied the Service saved their property. Those who did not lost virtually everything they owned. These homeowners deserve their day in court. The Ninth Circuit's decision would deny them that.