TESTIMONY OF MATT HOGAN, DEPUTY DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE HOUSE COMMITTEE ON RESOURCES, SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS, REGARDING H.R. 1006, THE "CAPTIVE WILDLIFE SAFETY ACT" AND 1472, THE "DON'T FEED THE BEARS ACT"

June 12, 2003

Mr. Chairman, and Members of the Subcommittee, I am Matt Hogan, Deputy Director of the U.S. Fish and Wildlife Service (Fish and Wildlife Service). I appreciate this opportunity to testify today on H.R. 1006, the "Captive Wildlife Safety Act" and H.R. 1472, the "Don't Feed the Bears Act."

H.R. 1006, Captive Wildlife Safety Act

H.R. 1006 would amend the Lacey Act to define "prohibited wildlife species" as any live lion, tiger, leopard, cheetah, jaguar, or cougar. The bill declares it a prohibited act, with some exceptions, for any person to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any of these prohibited wildlife species.

Although we acknowledge that the increasingly popular practice of keeping "big cat" species as pets has created a growing concern about both the safety of the public and the welfare of these animals, the Department cannot at this time support this legislation for the reasons outlined below.

In sum, while we share the Subcommittee's concerns about the presence and proliferation of big cats in the pet trade, this bill would provide little additional protection to big cat species in the wild - a high priority for the Fish and Wildlife Service. In addition, it may even fall short of its goal of regulating big cat pet trade. We are also concerned about the Fish and Wildlife Service's ability to meet the extended enforcement mandate created by this legislation. The new prohibitions introduced in this legislation would need to compete against other Fish and Wildlife Service mission-critical priority activities within the context of the President's Budget.

Moreover, the mechanism created by this bill appears to provide, at least in some instances, coverage that is duplicative of existing law. The Endangered Species Act (ESA) already prohibits the interstate sale and international trade of tigers, leopards, cheetahs, and jaguars. While H.R.1006 would extend such prohibitions to two unregulated species (lions and cougars), it would not ban private ownership or intrastate sale of the prohibited species. It would also exempt numerous groups and individuals from its prohibitions.

The Fish and Wildlife Service has an authorized force of 253 special agents to enforce our wildlife laws and treaties that protect trust resources, including endangered species, marine mammals, and migratory birds. Given the scope of the agency's conservation mission, the limited manpower available, and our need to focus on our highest priority needs, the Fish and Wildlife Service concentrates its enforcement efforts on preventing illegal activities that jeopardize the continued viability of wild populations of protected species.

In this respect, most of the thousands of big cats in the pet trade in this country are captive-bred animals. While big cat trafficking is a public safety problem and animal welfare concern, it is not, at its core, a wildlife conservation issue. H.R. 1006 would therefore emphasize and expand Fish and Wildlife Service enforcement responsibilities into an area that has not been considered a high priority. By including lions and cougars in the list of prohibited cats, this bill would also extend the Fish and Wildlife Service's enforcement mandate to policing currently legal activities involving interstate and foreign commerce of species that exist in abundant numbers in the wild, and that are currently not subject to the same rigorous protection as the other defined species.

The bill's definition of "prohibited wildlife species" would, in and of itself, limit the extent to which this legislation would control big cat pet trade because it does not cover all species that are part the problem. For example, H.R. 1006 does not include lynx, serval, caracal, clouded leopard, or snow leopards in that definition. Nor does it regulate hybrids, mixed species that are of little concern from a conservation standpoint but that account for an increasing percentage of the big cats bred, bought, and sold as pets in this country.

The effectiveness of this bill would further be limited by the scope of its exemptions. We believe that, at most, such exemptions should cover only those entities that are licensed by a state or the federal government. Such criteria would ensure that exempt organizations are otherwise accountable for any interstate or international transactions involving big cats. For example, both the Service and the Department of Agriculture offers licenses and regular inspections; many state agencies do the same.

For these reasons, the Department cannot at this time support this legislation.

H.R. 1472, Don't Feed the Bears Act

H.R. 1472 would require the adoption, where necessary, and enforcement of regulations to prohibit the intentional feeding of bears on federal public lands in order to end the hunting practice known as "bear baiting."

Although it is unclear from the bill text whether the legislation is applicable to black bear or all bears in general, I should point out that in North American most black bear populations are currently robust and generally increasing. In fact, there has been an overall 21 percent increase in black bear populations from the late 1980s to 2000. Overall, it appears that states are doing very well managing this species.

In addition, hunting over bait for grizzly bears is not permitted anywhere in the United States. In the lower 48 states, grizzly bears are protected as a threatened species under the Endangered Species Act throughout their range; in Alaska, while baiting for black bears may be allowed in accordance with State laws and regulations, baiting is not permitted when hunting for grizzly bear.

Federal Agencies and the Management of Resident Wildlife

In general, states possess broad responsibility and authority over resident fish and wildlife, including fish and wildlife found on federal lands within a state. Congress has reaffirmed this authority through numerous Acts. As discussed in more detail below, we must recognize these traditional roles in our evaluation of this legislation.

Let me begin with an overview of the various federal agencies' management policies and their relationships to the general management of wildlife species. The major federal land management agencies are the Fish and Wildlife Service, the National Park Service (Park Service), and the Bureau of Land Management (BLM), within the Department of the Interior; and the Forest Service.

National Wildlife Refuge System Lands

The National Wildlife Refuge System (NWRS) mission, established by the National Wildlife Refuge System Improvement Act of 1997 (Improvement Act), is:

to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans.

The Improvement Act established a clear hierarchy for uses in the System. As noted in accompanying House Report 105-106, "wildlife-dependent recreational uses, when determined to be compatible, are appropriate and legitimate uses of the System." The Improvement Act defines six wildlife-dependent recreational uses: hunting, fishing, wildlife observation and photography, and environmental education and interpretation, and states these uses should be facilitated and should receive priority consideration in refuge planning and management.

The National Wildlife Refuge System Administration Act of 1966 (Administration Act), as amended by the Improvement Act, further provides that the Director of the Fish and Wildlife Service, as the Secretary of the Interior's (Secretary) designee, will, among other things, ensure that regulations allowing hunting or fishing of fish and wildlife within the NWRS are, to the extent practicable, consistent with state fish and wildlife laws, regulations, and management plans.

Traditionally, the basis of most hunting regulations for national wildlife refuges is the hunting regulations of the state or states in which a particular refuge lies, and the Fish and Wildlife Service's regulations reflect this fact. For purposes of this discussion, state fish and wildlife agencies that currently permit bear baiting for hunting activities are Alaska, Idaho, Maine, Michigan, Minnesota, New Hampshire, Utah, Wisconsin, and Wyoming.

The Improvement Act further directs the Secretary to cooperate and consult with the states on fish and wildlife management activities on national wildlife refuges, including hunting programs, in order to "complement the efforts of other State … conservation efforts." (House Report 105-106) This makes sense, because while both federal and state fish and wildlife agencies have authorities and responsibilities for management of fish and wildlife, it is often the state agencies which possess the unique expertise and knowledge about resident fish and wildlife needed to establish effective laws, regulations, and management plans.

As noted in section 2 (c) of H.R. 1472, the Fish and Wildlife Service currently has regulations largely prohibiting baiting and hunting with bait on NWRS lands. This prohibition is largely based on the effects that baiting wildlife can have on relatively small areas, such as refuges. For example, baiting can attract wildlife from adjacent non-refuge lands, thus altering normal concentrations of refuge and non-refuge populations; it can alter behavioral patterns of target wildlife species; or it can attract undesirable species, complicating refuge management. (See 50 Fed. Reg. 36736, Sept. 19, 1984) Other regulations provide refuge managers the authority to waive this prohibition to allow bear feeding or baiting in support of research, human safety, animal welfare, or in other cases of emergency. The situation is somewhat different in Alaska, where baiting is authorized on federal lands, including NWRS lands, in accordance with State regulations. Even there, however, baiting is not permitted for grizzly bear hunting.

In sum, bear hunting is currently allowed on less than 6 percent of refuges, with bear baiting allowed, in accordance with State law, only on all or part of 11 Alaskan refuges.

National Park System Lands

On national park lands, human feeding of bears, whether deliberate or inadvertent, is a significant management problem wherever it occurs and is an activity that the Park Service works very hard to prevent on its lands. In fact, the Park Service evolved stringent bear protection and visitor use policies during the 1970s in response to clear recognition of the impacts to bears, property, and people caused by the improper handling of foods and trash brought into parks.

Hunting in general is allowed on Park Service land only where Congress has authorized such activity, and hunting and trapping activities are currently either mandated or discretionary in only 57 units of the National Park System. Where allowed in the park system, hunting activities are governed by federal law and applicable non-conflicting state law. However, the Park Service allows black bear baiting, in accordance with State law, for both subsistence and sport hunting in a number of units in the State of Alaska. (See 36 C.F.R. 13.21(d); 13.48)

BLM-managed Lands

Federal land management statutes under which the BLM operates also acknowledge the states' traditional role in managing fish and wildlife. These include, for example, the Multiple-Use Sustained-Yield Act, the Wilderness Act, and the Federal Land Policy and Management Act.

Under its own regulations, BLM defers to the states on management of fish and resident wildlife on public lands located within each state. While BLM works closely with states in the management of habitat that supports fish and resident wildlife, each state establishes and enforces regulations on hunting, trapping, and fishing on these lands. Except in emergency situations, BLM does not involve itself in determining or authorizing the type of hunting techniques allowed on public lands.

As a consequence, where it is permitted by state law, bear hunting with bait is currently permitted on BLM-managed lands. If problems arise, they would be treated as site-specific issues and would be resolved through coordination with the respective state wildlife agency at the BLM field or state office level.

Conclusion

We take from this review the following broad principle: in general, states possess broad trustee and police powers over resident fish and wildlife, including fish and wildlife found on federal lands within a state. As noted above, Congress has, through numerous Acts, reaffirmed this basic responsibility and authority of the states. For example, even though Congress has charged the Secretary of the Interior with responsibilities for the management of certain uniquely national fish and wildlife resources - e.g., endangered and threatened species, migratory birds, and certain marine mammals - with the limited exception of marine mammals, state jurisdiction remains concurrent with federal authority.

Moreover, practically speaking, we recognize that federal frameworks work best in situations where a broad perspective on populations and habitats is required - for example, with regard to migratory species such as ducks and geese. By prohibiting bear baiting on federal public lands, we eliminate the flexibility required at the local level to adjust harvest to meet sustainable population levels of resident species. As previously noted, black bear populations are currently robust and generally increasing. Without a wide array of management tools at their disposal, state managers may experience an increase in dangerous interactions between people and bears.

We believe that management decisions for individual resident wildlife populations are most appropriately made at the local, rather than federal, level. For these reasons, the Administration opposes this legislation.

In closing, I would like to state that we are committed to working to conserve, protect, and enhance fish, wildlife, and plants species and their habitats for the continuing benefit of the American public. As such, we welcome the opportunity to work with all of our partners to identify and address problems associated with the management of our fish and wildlife resources.

Mr. Chairman, this concludes my remarks. I would be happy to answer any questions that you might have.