U.S. Fish and Wildlife Service: Endangered Species Act Decision Making
Published: 2008-05-21T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Department of the Interior's (Interior) U.S. Fish and Wildlife Service (Service) is generally required to use the best available scientific information when making key decisions under the Endangered Species Act (ESA). Controversy has surrounded whether former Deputy Assistant Secretary Julie MacDonald may have inappropriately influenced ESA decisions by basing decisions on political factors rather than scientific data. Interior directed the Service to review ESA decisions to determine which decisions may have been unduly influenced. ESA actions include, among others, 90-day petition findings, 12-month listing or delisting findings, and recovery planning. The Service distributed informal guidance in May 2005 on the processing of 90-day petitions. Recovery plans generally must include recovery criteria that, when met, would result in the species being delisted. GAO examined three separate issues: (1) what types of decisions, if any, were excluded from the Service's review of decisions that may have been inappropriately influenced; (2) to what extent the Service's May 2005 informal guidance affected 90-day petition findings; and (3) to what extent the Service has, before delisting species, met recovery criteria. GAO interviewed Service staff, surveyed Service biologists, and reviewed delisting rules and recovery plans. Interior did not provide comments in time for them to be included in this testimony.
section_title: What GAO Found
paragraphs: Several types of decisions were excluded from the Service's review of decisions that may have been inappropriately influenced. Using the following selection criteria, the Service identified eight ESA decisions for potential revision: (1) whether Ms. MacDonald influenced the decision directly, (2) was the scientific basis of the decision compromised, and (3) did the decision significantly change and result in a potentially negative impact on the species. The Service excluded (1) decisions made by Interior officials other than Ms. MacDonald, (2) policy decisions that limited the application of science, and (3) decisions that were changed but not significantly or to the point of negative impact on the species. The Service's May 2005 informal guidance had no substantive effect on 90-day petition findings. In May 2005, Service headquarters distributed a guidance document via e-mail to endangered-species biologists that could have been interpreted as instructing them to use additional information collected to evaluate a 90-day petition only to refute statements made therein. GAO's survey of 90-day petition findings issued by the Service from 2005 through 2007 found that biologists used additional information collected to evaluate petitions to both support and refute claims made in the petitions, as applicable, including during the 18-month period when the May 2005 informal guidance was being used. However, GAO found that the Service faces various other challenges in processing petitions, such as making decisions within 90 days and adjusting to recent court decisions. None of the 90-day petition findings issued from 2005 through 2007 were issued within the desired 90-day time frame. During these years, the median processing time was 900 days, or about 2.5 years, with a range of 100 days to 5,545 days (over 15 years). Additionally, the Service faces several challenges in responding to court decisions issued since 2004. For example, the Service has not yet developed new official guidance on how to process 90-day petitions after the courts invalidated a portion of the prior guidance. Finally, of the eight species delisted because of recovery from 2000 through 2007, the Service determined that recovery criteria were completely met for five species and partially met for the remaining three species because some recovery criteria were outdated or otherwise not feasible to achieve. When the delistings were first proposed, however, only two of the eight species had completely met all their respective recovery criteria. Although the ESA does not explicitly require the Service to follow recovery plans when delisting species, courts have held that the Service must address the ESA's listing/delisting threat factors to the maximum extent practicable when developing recovery criteria. In 2006, GAO reported that the Service's recovery plans generally did not contain criteria specifying when a species could be recovered and removed from the endangered species list. Earlier this year, in response to GAO's recommendation, the Service issued a directive requiring all new and revised recovery plans to include criteria addressing each of the ESA's listing/delisting threat factors.

section_title: Letter
paragraphs: I am pleased to be here today to discuss our work related to Endangered  Species Act (ESA) decision making and allegations that implementation of  the act has been tainted by political interference. Recent controversy has  surrounded decisions by the Department of the Interior’s (Interior) U.S.  Fish and Wildlife Service (Service), specifically, over the role that “sound  science” plays in decisions made under the ESA—that is, whether the  Service bases its decisions on scientific data or on political considerations.  Generally, Interior and the Service are required to use the best available  scientific information when making key ESA decisions. At Interior some of  the controversy centered on whether a former Deputy Assistant Secretary,  Julie MacDonald, improperly influenced ESA decisions so as to limit  protections for threatened and endangered species. On the basis of an  anonymous complaint in April 2006, Interior’s Office of Inspector General  began investigating Ms. MacDonald’s activities and whether her  involvement in ESA implementation had undermined species protection.  Ms. MacDonald resigned on May 1, 2007, and little over a week later, the  House Committee on Natural Resources held a hearing on political  influence in ESA decision making. After the hearing, Interior asked the  Service to determine which of its ESA decisions may have been  inappropriately influenced by Ms. MacDonald.
In response to this directive, the Service identified eight decisions for  further review, generally according to the following three criteria:  (1) whether Ms. MacDonald influenced the decision directly, (2) was the  scientific basis of the decision compromised, and (3) did the decision  significantly change and result in a potentially negative impact on the  species. The eight decisions selected for further review were out of a  universe of more than 200 ESA decisions reviewed by Ms. MacDonald  during her almost 5 years of employment at Interior. Upon further review,  the Service concluded that seven of the eight selected decisions warranted  revision. The Service has proposed revisions for three of the decisions and  intends to revise the remaining decisions, as appropriate, in the coming  years.
On December 17, 2007, we briefed your staff on our findings related to our  work on the Service’s review of ESA decisions that may have been  inappropriately influenced. This testimony formally conveys the  information provided during that briefing, as updated to reflect the most  recent developments (see appendix III). In addition, this testimony  presents the results of our work conducted since the December 2007  briefing on two other ESA issues.
The purpose of the ESA is to conserve threatened and endangered species  and the ecosystems on which they depend. The act requires listing a  species as endangered if it faces extinction throughout all or a significant  portion of its range and as threatened if it is likely to become endangered  in the foreseeable future. Specifically, in determining whether to list or  delist a species, the Service evaluates the following five threat factors  contained in the act:  1.  whether a species’ habitat or range is under a present or potential  threat of destruction, modification, or curtailment;  2.  whether the species is subject to overuse for commercial, recreational,  scientific, or educational purposes;  3.  the risk of existing disease or predation;  4.  whether existing regulatory mechanisms are adequate; and  5.  whether other natural or manmade factors affect a species’ continued  existence.
The process to list a species begins either through the Service’s own  initiative or through a petition (referred to as a 90-day petition) from an  “interested person,” and it is governed by the ESA, federal regulations, and  other guidance that the Service may issue. The Service may initiate a  review of species without a petition by conducting a candidate assessment  to determine whether a species ought to be listed. A species may also be  listed through the petition process. The ESA directs the Service to make a  finding within 90 days (to the maximum extent practicable) after receiving  a petition “as to whether the petition presents substantial scientific or  commercial information indicating that the petitioned action may be  warranted.” Federal regulations define “substantial information” as the  amount of information that would lead a reasonable person to believe that  the petitioned action may be warranted. If the Service determines that the  listing process should proceed, it issues a “substantial” 90-day finding,  then conducts an in-depth 12-month review of the status of the species to  determine if, according to the best available scientific and commercial  information, the petitioned action is warranted. If the Service determines  that the petition does not present credible evidence supporting plausible  claims, it issues a negative, “not substantial” 90-day finding. A negative  90-day finding can be challenged in court.
In May 2005, the Service distributed a guidance document via e-mail to its  endangered-species biologists that could have been interpreted as  instructing them to use additional information collected to evaluate a  90-day petition only to refute statements made in the petition. Concerns  then arose that this informal guidance would bias petition findings against  listing species, thereby reducing the number of species that could have a  chance at protection under the ESA.
Environmental groups and the courts have also raised concern about the  implementation of recovery plans for delisted species, specifically, that the  Service has delisted species without fulfilling recovery criteria outlined in  recovery plans. The ESA generally requires the Service to develop and  implement recovery plans for the conservation of listed species. Since the  act was amended in 1988, the Service has been required to incorporate, to  the maximum extent practicable, several key elements in each recovery  plan, including objective, measurable recovery criteria that, when met,  would enable the species to be removed from the list of threatened or  endangered species. Recovery plans are not regulatory documents.  Rather, they provide guidance on methods to minimize threats to listed  species and on criteria that may be used to determine when recovery is  achieved. To develop and implement a recovery plan, the Service may  appoint a recovery team consisting of “appropriate public and private  agencies and institutions, and other qualified persons.” After a recovery  plan has been drafted or revised, the Service is required to provide public  notice and an opportunity for public review and comment. Although the  ESA does not explicitly require the Service to follow recovery plans when  delisting species, the possible high level of public involvement in the  development of recovery plans creates the expectation that the Service  will adhere to them.
In this context, from our December 2007 briefing, we are reporting on the  types of ESA decisions, if any, excluded from the Service’s selection  process of ESA decisions that had potentially been inappropriately  influenced. Additionally, we are reporting on the extent to which the  Service’s May 2005 informal guidance affected the Service’s decisions  published from 2005 through 2007 on petitions to list or delist species and  the extent to which the Service determined, before delisting, whether  species met recovery criteria outlined in recovery plans.
To determine what types of ESA decisions, if any, were excluded from the  Service’s selection process for decisions to review, we interviewed the  Director of the Service and all eight regional directors, and we conducted  site visits, phone interviews, or both with staff from ten field offices in five  regions that were actively engaged in ESA decision making. We also  reviewed Service policies and procedures for making ESA decisions, as  well as documentation on the Service’s process for selecting decisions to  review and on the status of the review. To evaluate the extent to which the  May 2005 informal guidance affected 90-day petition findings, we surveyed  44 current and former Service biologists responsible for drafting 54 90-day  petition findings issued from 2005 through 2007. We included only listing  and delisting petitions for U.S. species; for this reason and others, we  excluded 13 petition findings between 2005 and 2007 from our sample. To  determine the extent to which the Service met recovery criteria outlined in  recovery plans before delisting a species, we developed a list of all U.S.  species delisted because of recovery from 2000 through 2007 and reviewed  recovery plans and Federal Register proposed and final delisting decisions  (rules); this information indicated whether the Service believed that it had  met the criteria laid out in the recovery plans for the eight delisted U.S.  species we identified.
We conducted this performance audit from August 2007 to May 2008 in  accordance with generally accepted government auditing standards. Those  standards require that we plan and perform the audit to obtain sufficient,  appropriate evidence to provide a reasonable basis for our findings and  conclusions based on our audit objectives. We believe that the evidence  obtained provides a reasonable basis for our findings and conclusions  based on our audit objectives. A more detailed discussion or our scope  and methodology appears in appendix I. Appendix II presents a table of  the 90-day petition findings included and excluded from our sample.
subsections: section_title: Background
paragraphs: In addition to 90-day petition findings, 12-month status reviews, listings,  and delistings, other key categories of ESA decisions include critical  habitat designations, recovery plans, section 7 consultations, and habitat  conservation plans (see table 1).
Service staff at headquarters, eight regional offices, and 81 field offices are  largely responsible for implementing the ESA. Field office staff generally  draft ESA decisions; listing, delisting, and critical habitat decisions are  forwarded to regional and headquarters offices for review. Service  headquarters forwards listing decisions to Interior’s Office of Assistant  Secretary for Fish and Wildlife and Parks for review, although it is the  Service Director who generally approves the final decisions. The Assistant  Secretary of the Interior for Fish and Wildlife and Parks makes final  critical habitat decisions, after considering the recommendation of the  Service and considering economic, national security, and other factors.  Although the Service is responsible for making science-based decisions,  Interior takes responsibility for applying policy and other considerations  to scientific recommendations.
In most cases, ESA decisions must be based at least in part on the best  available scientific information (see table 1). To ensure that the agency is  applying the best available scientific information, the Service consults  with experts and considers information from federal and state agencies,  academia, other stakeholders, and the general public; some ESA decisions  are both “peer reviewed” and reviewed internally to help ensure that they  are based on the best available science. Nevertheless, because of differing  interpretations of “best available scientific information” and other key  concepts from the ESA such as “substantial” and “may be warranted,”  conservation advocacy groups have expressed concerns that ESA  decisions are particularly vulnerable to political interference from officials  within Interior.
While Ms. MacDonald was at Interior in two positions from July 7, 2002,  through May 1, 2007, she reviewed more than 200 ESA decisions. After a  May 9, 2007, congressional hearing, Interior’s Deputy Secretary directed  the Service Director to examine all work products produced by the Service  and reviewed by Ms. MacDonald that could require additional review  because of her involvement. Service Director Hall said the selection  process should include any type of ESA decision made during Ms.  MacDonald’s time in office. He delegated the selection process to the  regional directors and granted them considerable discretion in making  their selections for potential revision.
The regions generally applied three criteria to identify decisions for  potential revision: (1) Ms. MacDonald influenced the decision directly,  (2) the scientific basis of the decision was compromised, and (3) the  decision was significantly changed and resulted in a potentially negative  impact on the species. Using these criteria, the Service ultimately selected  eight decisions for further review to determine if the decision warranted  revision. After further review, the Service concluded that seven of the  eight decisions warranted revision (see table 2).
section_title: Several Types of Decisions Were Excluded from the Service’s Review of Potentially Inappropriately Influenced ESA Decisions
paragraphs: Several types of decisions were excluded from the Service’s review of  decisions that may have been inappropriately influenced. First, while the  Service focused solely on Ms. MacDonald, we found that other Interior  officials also influenced some ESA decisions. Ms. MacDonald was the  primary reviewer of most ESA decisions during her tenure, but other  Interior officials were also involved. For example, in the Southeast, after  reviewing a petition to list the Miami blue butterfly on an emergency basis,  Service officials at all levels supported a recommendation for listing the  species. Citing a Florida state management plan and existence of a captive- bred population, however, an Interior official other than Ms. MacDonald  determined that emergency listing was not warranted, and the blue  butterfly was instead designated as a candidate, not a listed species.
Second, the Service excluded policy decisions that limited the application  of science, focusing instead only on those decisions where the scientific  basis of the decision may have been compromised. Under Ms. MacDonald,  several informal policies were established that influenced how science  was to be used when making ESA decisions. For example, a practice was  developed that Service staff should generally not use or cite recovery  plans when developing critical habitat designations. Recovery plans can  contain important scientific information that may aid in making a critical  habitat designation. One Service headquarters official explained, however,  that Ms. MacDonald believed that recovery plans were overly aspirational  and included more land than was absolutely essential to the species’  recovery. Under another informal policy, the ESA wording “occupied by  the species at the time it is listed” was narrowly applied when designating  critical habitat. Service biologists were restricted to interpreting occupied  habitat as only that habitat for which they had records showing the  species to be present within specified dates, such as within 10 years of  when the species was listed. In the case of the proposed critical habitat for  the bull trout, Ms. MacDonald questioned Service biologists’ conclusions  about the species’ occupied habitat. As a result, some proposed critical  habitat areas were removed, in part because occupancy by the species  could not be ascertained.
Third, the Service excluded decisions that were changed but not  significantly or to the point of negative impact on the species. For  example, under Ms. MacDonald’s influence, subterranean waters were  removed from the critical habitat designation for Comal Springs  invertebrates. Service staff said they believed that the exclusion of  subterranean waters would not significantly affect the species because  aboveground waters were more important habitat. They also  acknowledged that not much is known about these species’ use of  subterranean waters.
Finally, we identified several other categories of decisions that, in some or  all cases, were excluded from the Service’s selection process. For  example, in some cases that we identified, decisions that had already been  addressed by the courts were excluded from the Service’s selection  process; decisions that could not be reversed were also excluded. In the  case of the Palos Verdes blue butterfly, Navy-owned land that was critical  habitat was exchanged after involvement by Ms. MacDonald in a section 7  consultation. As a result, the habitat of the species’ last known wild  population was destroyed by development, and therefore reversing the  decision would not have been possible. Additionally, decisions were  excluded from the Service’s selection process if it was determined that  review would not be an efficient use of resources or if it could not be  conclusively determined that Ms. MacDonald altered the decision. Several  Service staff cited instances where they believed that Ms. MacDonald had  altered decisions, but because the documentation was not clear, they  could not ascertain that she was responsible for the changes. Additionally,  decisions that were implicitly attributed to Ms. MacDonald were excluded  from the selection process. Service staff described a climate of “Julie- proofing” where, in response to continual questioning by Ms. MacDonald  about their scientific reasoning, they eventually learned to anticipate what  might be approved and wrote their decisions accordingly.
section_title: The Service’s May 2005 Informal Guidance Had No Substantive Effect on 90-Day Petition Findings, Although Other Challenges Exist
paragraphs: While the Service’s May 2005 informal guidance had no substantive effect  on the processing of 90-day petition findings, the Service still faces several  other challenges in processing these petitions. Stakeholders have  expressed concern that the wording of the May 2005 guidance was slanted  more toward refuting petitioners’ listing claims, rather than encouraging  Service biologists to use information to both support and refute listing  petitions; consequently, they feared that a greater number of negative  90-day petition findings would result. According to a senior Service  official, it was never the Service’s position that information collected to  evaluate a petition could be used to support only one side, specifically,  only to refute the petition. Rather, according to a senior Service official, its  position is and has been that additional collected information can be used  to either support or refute information presented in the petition; any  additional information is not, however, to be used to augment or  supplement a “weak” petition by raising new issues not already presented.  According to the ESA, the petition itself must present “substantial  scientific or commercial information indicating that the petitioned action  may be warranted.” Our survey of Service biologists responsible for  drafting the 90-day petition findings issued from 2005 through 2007 found  that the biologists generally used additional information, as applicable, to  support as well as refute information in the petitions. The Service is  facing several challenges with regard to the processing of 90-day petition  findings. In particular, the Service finds it difficult to issue decisions  within the desired 90-day time frame and to adjust to various court  decisions issued in the last 4 years.
subsections: section_title: Notwithstanding the Service’s May 2005 Informal Guidance, Additional Information Collected by Service Biologists Was Used to Support and Refute 90-day Petitions
paragraphs: In our survey of 44 Service biologists who prepared 54 90-day petition  findings from 2005 through 2007, we found that additional information  collected to evaluate the petitions was generally used, as applicable, to  both support and refute information in the petitions, including during the  18-month period when the May 2005 informal guidance was being used.  The processing of 90-day petition findings is governed by the ESA, federal  regulations, and various guidance documents distributed by the Service.  To direct the implementation of the law and regulations, and to respond to  court decisions, the Service issues guidance, which is implemented by  Service staff in developing 90-day petition findings. This guidance can  come in formal policies and memorandums signed by the Service Director,  or informal guidance not signed by the Director but distributed by  headquarters to clarify what information should be used and how it should  be used in processing petitions. In July 1996, the Service issued a formal  policy, called Petition Management Guidance, governing 90-day petition  findings and 12-month status reviews. A component of this document was  invalidated by the District of Columbia district court in June 2004.  According to senior Service officials, since 2004 the Service has  distributed a series of instructions through e-mails, conference calls, and  draft guidance documents to clarify the development of 90-day petition  findings. For example, in May 2005, the Service distributed via e-mail an  informal guidance document that directed its biologists to create an  outline listing additional information—that is, information not cited or  referred to in a petition—that refuted statements made in the petition;  biologists were not to list in the outline any additional information that  may have clarified or supported petition statements.
We identified a universe of 67 90-day petition findings issued by the  Service from 2005 through 2007. To focus on how the Service used  information to list or delist U.S. species, we surveyed Service biologists  responsible for drafting 54 of the 67 90-day petition findings. For the 54  90-day petitions included in our survey, 40 were listing petitions, and 14  were delisting petitions; 25 resulted in positive 90-day petition findings,  and 29 resulted in negative 90-day petition findings (see table 3).
In November 2006, the Service distributed new draft guidance on the  processing of 90-day petitions, which specified that additional information  in Service files could be used to refute or support issues raised in the  petition but not to “augment a weak petition” by introducing new issues.  For example, if a 90-day petition to list a species claimed that the species  was threatened by predation and habitat loss, the Service could not  supplement the petition by adding information describing threats posed by  disease. The May 2005 informal guidance was thus in use until this  November 2006 guidance was distributed, or approximately 18 months.
Our survey results showed that in most cases, the additional information  collected by Service biologists when evaluating 90-day petitions was used  to support as well as refute information in petitions (see table 4).  According to the Service biologists we surveyed, additional information  was used exclusively to refute information in 90-day petitions in only 8 of  54 cases. In these 8 cases, the biologists said, this approach was taken  because of the facts, circumstances, and the additional information  specific to each petition, not because they believed that it was against  Service policy to use additional information to support a petition. In  particular, with regard to the 4 petitions processed during May 2005  through November 2006 for which additional information was used  exclusively to refute petition information, the biologists stated that the  reasons they did not use information to support claims made in the  petition was that either the claims themselves did not have merit or the  information reviewed did not support the petitioner’s claims. Three of the  four biologists responsible for these petitions also stated that they did not  think it was against Service policy to use additional information to support  issues raised in a petition. The fourth biologist was uncertain whether it  was against Service policy to support issues raised in a petition.
section_title: The Service Faces Challenges in Processing 90-day Petitions in a Timely Manner and in Responding to Court Decisions Issued since 2004
paragraphs: While the May 2005 informal guidance did not have a substantive effect on  the Service’s processing of 90-day petitions, the Service still faces  challenges in processing 90-day petitions in a timely manner and in  responding to court decisions issued since 2004. None of the 90-day  petition findings issued from 2005 through 2007 were issued within the  desired 90-day time frame. During this period, the median processing time  was 900 days, or about 2.5 years, with a range of 100 days to 5,545 days  (more than 15 years). According to Service officials, almost all of their  ESA workload is driven by litigation. Petitioners have brought a number of  individual cases against the Service for its failure to respond to their  petitions in a timely manner. This issue presents continuing challenges  because the Service’s workload increased sharply in the summer of 2007,  when it received two petitions to list 475 and 206 species, respectively.
The Service is also facing several management challenges stemming from  a number of court decisions since 2004:    According to senior Service officials, the Service currently has no  official guidance on how to develop 90-day petition findings, partially  because of a 2004 court decision invalidating part of the Service’s 1996  Petition Management Guidance. The Service’s official 1996 Petition  Management Guidance contained a controversial provision that treated  90-day petitions as “redundant” if a species had already been placed on  the candidate list via the Service’s internal process. In 2004, a federal  district court issued a nationwide injunction striking down this portion  of the guidance. Senior service officials stated that the Service  rescinded use of the document in response to this court ruling and  began an iterative process in 2004 to develop revised guidance on the  90-day petition process. According to these officials, guidance was  distributed in piecemeal fashion, dealing with individual aspects of the  process in the form of e-mails, conference-call discussions, and various  informal guidance documents. Our survey respondents indicated that  the lack of official guidance created confusion and inefficiencies in  processing 90-day petitions. Specifically, survey respondents were  confused on what types of additional information they could use to  evaluate 90-day petitions—whether they were limited to information in  Service files, or whether they could use information solicited from their  professional contacts to clarify or expand on issues raised in the  petition. Several survey respondents also stated that unclear and  frequently changing guidance resulted in longer processing times for  90-day petition findings, which was frustrating because potentially  endangered species decline further as the Service determines whether  they are worthy of protection. Further complicating matters, 31 of the  44 biologists we surveyed, or 70 percent, had never drafted a 90-day  petition finding before. According to a senior Service official, the  Service is planning to issue official guidance on how 90-day petition  findings should be developed to eliminate confusion and  inconsistencies.
With regard to the use of outside information in evaluating petitions,  the Service must continue to adapt to a number of court decisions  dating back to 2004 holding that the Service should not solicit  information from outside sources in developing 90-day petition  findings. A December 2004 decision by the U.S. District Court for the  District of Colorado stated that the Service’s “consideration of outside  information and opinions provided by state and federal agencies during  the 90-day review was overinclusive of the type of information the ESA  contemplates to be reviewed at this stage . . . ,  those petitions that  are meritorious on their face should not be subject to refutation by  information and views provided by selected third parties solicited by  .” Since then, several other courts have reached similar  conclusions. Despite the constancy of various courts’ holdings, 25 out  of the 54 90-day petition findings in our survey, or 46 percent, were  based in part on information from outside sources, according to  Service biologists. The Service’s May 2005 informal guidance directed  biologists to use information in Service files or “other information,”  which the guidance did not elaborate on. The Service’s November 2006  draft guidance stated that biologists should identify and review “readily  available information within Service files” as part of evaluating  information contained in petitions. The biologists we surveyed  expressed confusion and lack of consensus on the meaning of the  terms “readily available” and “within Service files.” Some Service  officials were concerned that if information solicited from outside  sources could not be considered in developing 90-day petition findings,  many more 90-day petitions would be approved and moved forward for  in-depth 12-month reviews, further straining the Service’s limited  resources.
In addition, the Service must continue to adapt to a number of court  decisions since 2004 on whether it is imposing too high a standard in  evaluating 90-day petitions. This issue—essentially, what level of  evidence is required at the 90-day petition stage and how this evidence  should be evaluated—goes hand in hand with the issue of using  additional information outside of petitions in reaching ESA decisions.  In overturning three negative 90-day petition findings, three recent  court decisions in 2006 and 2007 have held, in part, that the Service  imposed too high a standard in evaluating the information presented in  the petitions. These court decisions have focused on the meaning of  key phrases in the ESA and federal regulations, such as “substantial”  information, “a reasonable person,” and “may be warranted.” In 2006,  the U.S. District Court for the District of Montana concluded that the  threshold necessary to pass the 90-day petition stage and move forward  to a 12-month review was “not high.” Again, some Service officials are  concerned that these recent court decisions may lead to approval of  more 90-day petitions, thus moving them forward for in-depth 12-month  reviews and straining the Service’s limited resources.
Beyond these general challenges, the Service’s 90-day petition finding in a  recent case involving the Sonoran Desert population of the bald eagle has  come under severe criticism by the U.S. District Court for the District of  Arizona. The court noted that Service scientists were told in a conference  call that headquarters and regional Service officials had reached a “policy  call” to deny the 90-day petition and that “we need to support .” A  headquarters official made this statement even though the Service had  been unable to find information in its files refuting the petition and even  though at least some Service scientists had concluded that listing may be  warranted. The court stated that the Service participants in a July 18, 2006,  conference call appeared to have received “marching orders” and were  directed to find an analysis that fit a 90-day finding that the Sonoran  Desert population of the bald eagle did not constitute a distinct population  segment. The court stated that “these facts cause the Court to have no  confidence in the objectivity of the agency’s decision-making process in its  August 30, 2006, 90-day finding.” In contrast, in a September 2007 decision,  the U.S. District Court for the District of Idaho upheld the Service’s “not  substantial” 90-day petition findings on the interior mountain quail distinct  population segment.
section_title: Recovery Criteria for Threatened and Endangered Species Were Generally Met in Final Delisting Decisions but Not in Proposed Delisting Decisions
paragraphs: Of the eight U.S. species delisted from 2000 through 2007 because of  recovery, the Service reported that recovery criteria were completely met  for five species and partially met for the remaining three species. When the  delistings were first proposed, however, the respective recovery criteria  for only two of the eight species had been completely met. Although the  ESA does not specifically require the Service to meet recovery criteria  before delisting a species, courts have held that the Service must address  the ESA’s five threat factors for listing/delisting, to the maximum extent  practicable, in developing recovery criteria. For each of the delisted  species that we reviewed, the Service determined that the five threat  factors listed in the ESA no longer posed a significant enough threat to the  continued existence of the species to warrant continued listing as  threatened or endangered.
Table 5 summarizes whether the recovery criteria for the eight species  delisted from 2000 through 2007 were partially or completely met at the  proposed rule stage and the final rule stage. At the proposed rule stage,  only two of the eight species had completely met their respective recovery  criteria; that fraction increased to five of eight at the final rule stage. The  period between the proposed rules and the final rules ranged from less  than 1 year for the gray wolf’s western Great Lakes distinct population  segment to just over 8 years for the bald eagle.
For the species where the criteria were not completely met before final  delisting, the Service indicated that the recovery criteria were outdated or  otherwise not feasible to achieve. For example, the recovery plan for the  Douglas County population of Columbian white-tailed deer was originally  developed in 1976 and later updated in 1983. The recovery plan  recommended maintaining a minimum population of 500 animals  distributed in suitable, secure habitat within Oregon’s Umpqua Basin. The  Service reported it was not feasible to demonstrate, without considerable  expense, that 500 specific deer live entirely within secure lands managed  for their benefit, for most deer move between public and private lands.  Even though this specific recovery criterion was not met, the Service  indicated that the species warranted delisting because of the overall  increase in its population and amount of secure habitat.
The West Virginia northern flying squirrel, whose final delisting decision  was pending at the time of our review, offers an example of a species  proposed for delisting even though the recovery criteria have not been  met. The species was proposed for delisting on December 19, 2006. The  squirrel’s recovery plan was developed in 1990 and amended in 2001 to  incorporate guidelines for habitat identification and management in the  Monongahela National Forest, which supports almost all of the squirrel’s  populations. The Service asserted that, other than the 2001 amendment,  the West Virginia northern flying squirrel recovery plan is outdated and no  longer actively used to guide recovery. This was in part because the  squirrel’s known range at the time of proposed delisting was much wider  than the geographic recovery areas designated in the recovery plan and  because the recovery areas have no formal or regulatory distinction. In  support of its delisting decision, the Service indicated that the squirrel  population had increased and that suitable habitat had been expanding.  The Service drew these conclusions largely on the basis of a 5-year  review—an ESA-mandated process to ensure the continued accuracy of a  listing classification—completed in 2006, and not on the basis of the  squirrel’s 1990 recovery plan. The Service also reported that the recovery  plan’s criteria did not specifically address the five threat factors.
According to the Service, most recovery plan criteria have focused on  demographic parameters, such as population numbers, trends, and  distribution. While the Service acknowledges that these types of criteria  are valid and useful, it also cautions that, by themselves they are not  adequate for determining a species’ status. The Service reports that  recovery can be accomplished via many paths and may be achieved even if  not all recovery criteria are fully met. A senior Service official noted that  the quality of recovery plans varies considerably, and some criteria may be  outdated. Furthermore, Service officials also noted, recovery plans are  fluid documents, and the plan’s respective criteria can be updated as new  threat information about a particular species becomes available.
While the ESA does not specifically require the Service to meet recovery  criteria before delisting a species, courts have held that it must address  each of the five threat factors to the maximum extent practicable when  developing recovery criteria. In a 2006 report, we provided information  on 107 randomly sampled recovery plans covering about 200 species.  Specifically, we found that only 5 of the 107 reviewed recovery plans  included recovery criteria that addressed all five threat factors. We  recommended that in recovery planning guidance, the Service include  direction that all new and revised recovery plans contain either recovery  criteria to demonstrate consideration of all five threat factors or a  statement about why it is not practicable to include such criteria. In  January 2008, in response to our recommendation, the Director of the  Service issued a memorandum requiring all new and revised recovery  plans to include criteria addressing each of the five threat factors.
section_title: Concluding Observations
paragraphs: In conclusion, Mr. Chairman, questions remain about the extent to which  Interior officials other than Ms. MacDonald may have inappropriately  influenced ESA decisions and whether broader ESA policies should be  revisited. Under the original direction from Interior’s Deputy Secretary  and the three selection criteria followed by the Service, a variety of ESA  decisions were excluded from the selection process. Broadening the scope  of the review might have resulted in the selection of more decisions, but it  is unclear to what extent.
The Service recognizes the need for official guidance on how 90-day  petition findings should be developed to eliminate confusion and  inconsistencies. The guidance will need to reflect the Service’s  implementation of recent court decisions on how far the Service can go in  collecting additional information to evaluate 90-day petitions and reflect  what standards should be applied to determine if a petition presents  “substantial” information. The need for clear guidance is more urgent than  ever with the Service’s receipt in the summer of 2007 of two petitions to  list 681 species.
Assuming successful implementation of the Service’s January 2008  directive that recovery criteria be aligned with the five threat factors in the  ESA, we believe that future delistings will more likely meet recovery  criteria while also satisfying the ESA’s delisting requirements based on the  five threat factors.
section_title: Agency Comments
paragraphs: We provided Interior with a draft of this testimony for review and  comment. However, no comments were provided in time for them to be  included as part of this testimony.
Mr. Chairman, this completes my prepared statement. I would be happy to  respond to any questions you or other members of the Committee may  have at this time.
section_title: GAO Contacts and Staff Acknowledgments
paragraphs: For further information, please contact Robin M. Nazzaro at (202) 512-3841  or nazzaror@gao.gov. Contact points for our Offices of Congressional  Relations and Public Affairs may be found on the last page of this  statement. Individuals making key contributions to this testimony include  Jeffery D. Malcolm, Assistant Director; Eric A. Bachhuber; Mark A. Braza;  Ellen W. Chu; Alyssa M. Hundrup; Richard P. Johnson; Patricia M.  McClure; and Laina M. Poon.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: We are reporting on (1) what types of decisions, if any, were excluded  from the U.S. Fish and Wildlife Service’s (Service) selection process of  Endangered Species Act (ESA) decisions that were potentially  inappropriately influenced; (2) the extent to which the Service’s May 2005  informal guidance affected the Service’s decisions on petitions to list or  delist species; and (3) the extent to which the Service determined, before  delisting, whether species met recovery criteria outlined in recovery plans.
To address our first objective, we interviewed the Director of the Service,  all eight regional directors, and key regional staff. Also, we conducted site  visits, phone interviews, or both with ESA staff from ten field offices in  five regions that were actively engaged in ESA decision making. Further,  we reviewed documentation developed by Service headquarters, regions,  and field offices about the selection process and the status of the Service’s  review. In addition, we reviewed Service policies and procedures for  making ESA decisions and reviewed other species-specific information.
To address our second objective, we identified 67 90-day petition findings  issued by the Service from 2005 through 2007 and conducted structured  telephone interviews of current and former Service biologists responsible  for drafting 90-day petition findings issued in that time frame. Of the 67,  we excluded 13 petition findings from our survey: 5 had been overturned  by the courts or were being redone as a result of a settlement agreement;  3 involved up-listing already protected species from threatened to  endangered; 2 involved ongoing litigation; 2 involved species located  outside the United States; and 1 involved a petition to revise a critical  habitat designation for a species that was already protected. In total, we  surveyed 44 biologists responsible for drafting 54 90-day petition findings.  To identify the lead author responsible for drafting the 90-day petition  findings in our survey, we contacted the field office supervisor at the  office where the petition finding was drafted. The field office supervisor  directed us to the biologist who was the lead author of the finding or, if  that person was not available, a supporting or supervising biologist. Of the  44 biologists we surveyed, 39 were lead biologists in drafting the finding,  3 were supervising biologists, and 2 were supporting biologists. From  February 1, 2008, and February 6, 2008, we pretested the survey with  5 biologists from three regions between, and we used their feedback to  refine the survey. The five 90-day petition findings we selected for the  pretest were all published in 2004 to most closely approximate, but not  overlap with, our sample. They represented a balance between listing and  delisting petitions, substantial and not substantial findings, and types of  information used in evaluating the petition as stated in the Federal  Register notice. We conducted the pretests through structured telephone  interviews to ensure that (1) the questions were clear and unambiguous,  (2) terms were precise, and (3) the questions were not sensitive and that  the questions as phrased could be candidly answered. A GAO survey  specialist also independently reviewed the questionnaire.
Our structured interview questions were designed to obtain information  about the process the Service uses in making 90-day petition findings  under the ESA and the types of information used to draft each 90-day  petition finding. Specifically, the structured questions focused on  information that was not cited or referred to in a listing or delisting  petition but was either internal to Service files or obtained from sources  outside the Service. In each of these categories, we asked whether the  information was used to support, refute, or raise new issues not cited in  the petition.
Table 6 summarizes the key questions we are reporting on that we asked  during the structured interviews. We also asked other questions in the  survey that we do not specifically report on; these questions do not appear  in the table below.
Our survey results demonstrated in several ways that the May 2005  guidance did not have a substantive effect on the outcomes of 90-day  petition findings. First, Service biologists who chose not to use  information outside of petitions to support claims made in the petitions  said that Service policy had no influence on this choice. Second, when  asked what guidance they followed in drafting their 90-day petition  finding, very few respondents cited the May 2005 guidance, indicating that  although this guidance may have been followed to create an internal  agency outline, it did not have a substantive effect on the finding itself.  Third, in response to our concluding, open-ended question, none of the  biologists mentioned specific reservations about the May 2005 guidance.
To address our third objective, we generated a list of all of the Service’s  final delisting decisions published as rules in the Federal Register (and  corresponding proposed delisting rules) from calendar years 2000 through  2007, to determine the number of species removed from the list of  threatened and endangered species by the Service. As of December 31,  2007, the Service had issued final rules resulting in the delisting of  17 species. Of those 17 delisted species, 2 species were delisted because  they had been declared extinct, 6 species were delisted because the  original data used to list the species were in error, and 9 species were  delisted as a result of recovery. Of the 9 recovered species, we excluded  the Tinian monarch, a species located in a U.S. territory, which reduced  the number of species we looked at to 8 U.S. species delisted because of  recovery. To examine whether the Service met recovery criteria outlined  in recovery plans before delisting species, we obtained and reviewed the  Service’s recovery plans for each of those 8 delisted species and also  examined the Federal Register proposed and final delisting rules. This  information indicated whether the Service believed that it had met the  criteria laid out in the recovery plans for the 8 delisted U.S. species.  Finally, we also reviewed the proposed rule to delist the West Virginia  northern flying squirrel; as of March 31, 2008, the Service had not finalized  this proposed rule.
We conducted this performance audit from August 2007 to May 2008 in  accordance with generally accepted government auditing standards. Those  standards require that we plan and perform the audit to obtain sufficient,  appropriate evidence to provide a reasonable basis for our findings and  conclusions based on our audit objectives. We believe that the evidence  obtained provides a reasonable basis for our findings and conclusions  based on our audit objectives.
section_title: Appendix II: Ninety-Day Petition Findings Issued from 2005 through 2007
paragraphs: Arizona brome and nodding needlegrass  70 Fed. Reg. 3504   (Jan. 25, 2005)  70 Fed. Reg. 5123   (Feb. 1, 2005)  70 Fed. Reg. 5401   (Feb. 2, 2005)  70 Fed. Reg. 5959   (Feb. 4, 2005)  70 Fed. Reg. 20512   (Apr. 20, 2005)  70 Fed. Reg. 20512   (Apr. 20, 2005)  70 Fed. Reg. 35607   (June 21, 2005)  70 Fed. Reg. 38849   (July 6, 2005)
Roundtail chub, lower Colorado River basin distinct  population segment, and headwater chub  70 Fed. Reg. 39981   (July 12, 2005)  70 Fed. Reg. 44544   (Aug. 3, 2005)  70 Fed. Reg. 46467   (Aug. 10, 2005)  70 Fed. Reg. 46465  (Aug. 10, 2005)
Gray wolf, northern Rocky Mountain distinct  population segment  70 Fed. Reg. 61770   (Oct. 26, 2005)  70 Fed. Reg. 69303  (Nov. 15, 2005)  70 Fed. Reg. 71795  (Nov. 30, 2005)  70 Fed. Reg. 73190   (Dec. 9, 2005)  71 Fed. Reg. 315  (Jan. 4, 2006)
American dipper, Black Hills, South Dakota,  population  71 Fed. Reg. 4341  (Jan. 26, 2006)  71 Fed. Reg. 4337  (Jan. 26, 2006)   71 Fed. Reg. 6745  (Feb. 9, 2006)  71 Fed. Reg. 7497  (Feb. 13, 2006)  71 Fed. Reg. 7715  (Feb. 14, 2006)  71 Fed. Reg. 8252  (Feb. 16, 2006)  71 Fed. Reg. 9988  (Feb. 28, 2006)  71 Fed. Reg. 26444  (May 5, 2006)  71 Fed. Reg. 29908  (May 24, 2006)  71 Fed. Reg. 44988  (Aug. 8, 2006)  71 Fed. Reg. 44960  (Aug. 8, 2006)  71 Fed. Reg. 44980  (Aug. 8, 2006)  71 Fed. Reg. 44966  (Aug. 8, 2006)
Sixteen insect species from the Algodones Sand  Dunes, Imperial County, California  71 Fed. Reg. 47765  (Aug. 18, 2006)  71 Fed. Reg. 48900  (Aug. 22, 2006)  71 Fed. Reg. 56937  (Sept. 28, 2006)  71 Fed. Reg. 56932  (Sept. 28, 2006)  71 Fed. Reg. 58363  (Oct. 3, 2006)  71 Fed. Reg. 67318  (Nov. 21, 2006)  71 Fed. Reg. 70483  (Dec. 5, 2006)  71 Fed. Reg. 70479  (Dec. 5, 2006)
Northern water snake, upper tidal Potomac River  population   71 Fed. Reg. 70715  (Dec. 6, 2006)  71 Fed. Reg. 75215  (Dec. 14, 2006)  71 Fed. Reg. 75215  (Dec. 14, 2006)  72 Fed. Reg. 6699  (Feb. 13, 2007)  72 Fed. Reg. 6703  (Feb. 13, 2007)  72 Fed. Reg. 6998  (Feb. 14, 2007)
Longnose sucker, Monongohela River population   72 Fed. Reg. 10477  (Mar. 8, 2007)  72 Fed. Reg. 29933  (May 30, 2007)  72 Fed. Reg. 31256  (June 6, 2007)  72 Fed. Reg. 31264  (June 6, 2007)  72 Fed. Reg. 31250  (June 6, 2007)  72 Fed. Reg. 45717  (Aug. 15, 2007)  72 Fed. Reg. 46023  (Aug. 16, 2007)
Kenk’s amphipod, northern Virginia well amphipod,  and a copepod  72 Fed. Reg. 51766  (Sept. 11, 2007)  72 Fed. Reg. 57278  (Oct. 9, 2007)  72 Fed. Reg. 59979  (Oct. 23, 2007)
Overturned or settled as a result of litigation  70 Fed. Reg. 29253  (May 20, 2005)  71 Fed. Reg. 6241  (Feb. 7, 2006)  71 Fed. Reg. 51549  (Aug. 30, 2006)  71 Fed. Reg. 76057  (Dec. 19, 2006)  72 Fed. Reg. 23886  (Apr. 25, 2006)  71 Fed. Reg. 4092  (Jan. 25, 2006)  72 Fed. Reg. 7843  (Feb. 21, 2007)  72 Fed. Reg. 14865  (Mar. 29, 2007)  72 Fed. Reg. 57273  (Oct. 9, 2007)
Mountain whitefish in the Big Lost River, Idaho  72 Fed. Reg. 59983  (Oct. 23, 2007)  71 Fed. Reg. 36743  (June 28, 2006)  72 Fed. Reg. 37695  (July 11, 2007)  72 Fed. Reg. 9913  (Mar. 6, 2007)
Western Watersheds Project v. Norton, Civ. No. 06-127, 2007 WL 2827375 (D.Idaho Sept. 6, 2007).
Forest Guardians v. Kempthorne, Civ. No. 06-02115 (D.D.C.), settlement filed June 29, 2007.
Center for Biological Diversity v. Kempthorne, Civ. No. 07-0038, 2008 WL 659822 (D. Ariz. Mar. 6,  2008).
Center for Biological Diversity v. United States Fish and Wildlife Service, Civ. No. 07-4347 (N.D.  Cal.), settlement filed Feb. 21, 2008.
Center for Biological Diversity v. Kempthorne, Civ. No. 06-04186, 2007 WL 163244, (N.D. Cal.  Jan. 19, 2007).
Western Watersheds Project v. Kempthorne, Civ. No. 07-00409 (D. Idaho), complaint filed Jan. 25,  2008.
section_title: Appendix III: Briefing Slides
subsections: section_title: Introduction
paragraphs: In April 2006, an anonymous complaint prompted the Department of the Interior’s (Interior) Office of Inspector General to begin investigating  Deputy Assistant Secretary Julie MacDonald’s activities and her  involvement with Endangered Species Act (ESA) decisions.
On March 23, 2007, Interior’s Inspector General reported on its  investigation of allegations that Ms. MacDonald was involved in  unethical and illegal activities related to ESA decision making.
The investigation did not reveal illegal activity but concluded that Ms.
MacDonald violated federal rules by sending internal agency  documents to industry lobbyists.
On May 1, 2007, Ms. MacDonald resigned from her position as Deputy  Assistant Secretary.
section_title: Introduction
subsections: section_title: On May 9, 2007, the House Natural Resources Committee held a
paragraphs: congressional hearing titled Endangered Species Act Implementation:  Science or Politics? (House Hearing No. 110-24).
On May 22, 2007, Interior’s Deputy Secretary, Lynn Scarlett, directed  Interior’s U.S. Fish and Wildlife Service (Service) Director Dale Hall to  examine all work products that were produced by the Service,  reviewed by Ms. MacDonald, and could require additional review  because of her involvement.
In response to the directive, the Service identified eight decisions for  further review.
section_title: Objectives
subsections: section_title: Subsequent to these events, we were requested to examine:
paragraphs: The Service’s selection process for determining which ESA  decisions were potentially inappropriately influenced by former  Deputy Assistant Secretary MacDonald and the status of the  Service’s review of these decisions.
The types of decisions, if any, excluded from the Service’s  selection process.
section_title: Scope and Methodology
paragraphs: Interviewed the Director of the Service, all eight regional directors, and  key regional ESA staff.
Conducted site visits, phone interviews, or both with ESA staff from 10  field offices in five regions that were actively engaged in ESA decision  making.
Reviewed documentation developed by Service headquarters, regions,  and field offices about the selection process and the current status of  the Service’s review.
Reviewed Service policies and procedures for making ESA decisions  and reviewed other species-specific documentation.
section_title: Background
subsections: section_title: The purpose of the Endangered Species Act of 1973 is to conserve
paragraphs: threatened and endangered species and the ecosystems upon which  they depend.
The ESA requires listing a species as endangered if it faces extinction  throughout all or a significant portion of its range and as threatened if it  is likely to become endangered in the foreseeable future.
The ESA has provisions to protect and recover species after they are  listed, and it prohibits the “taking” of listed animal species.
Many ESA decisions must be based, at least in part, on the best  available scientific information.
section_title: Background
subsections: section_title: Key types of ESA decisions
section_title: Background
subsections: section_title: Responsibilities for ESA implementation
paragraphs: Interior is responsible for implementing the ESA for freshwater and  terrestrial species.
Interior has delegated many of its ESA responsibilities to the Service.
Service staff at headquarters, regional, and field offices are largely  responsible for implementing the various ESA provisions.
Field office staff are generally responsible for initiating ESA decision- making actions; listing and critical habitat decisions are forwarded to  regional and headquarters offices for review.
section_title: Background
subsections: section_title: Service regions
section_title: Background
subsections: section_title: The Service forwards listing decisions to Interior’s Office of Assistant
paragraphs: Secretary for Fish and Wildlife and Parks for review; the Service  Director generally approves final decisions.
For critical habitat, the Service forwards its recommendations to  Interior’s Office of Assistant Secretary for Fish and Wildlife and Parks,  which applies economic, national security, and other factors before it  approves a final determination.
While in office from July 2002 until May 2007, Interior’s former Deputy  Assistant Secretary MacDonald reviewed more than 200 ESA  decisions.
Dale Hall was sworn in on October 12, 2005, as Service Director. In  February 2006, he met with Ms. MacDonald and other Interior officials  about their review and involvement in the Service’s ESA decisions.
section_title: Background
subsections: section_title: On November 27, 2007, Interior’s Inspector General reported on a an
paragraphs: investigation of allegations that Ms. MacDonald’s involvement resulted  in the withdrawal of the Service’s decision to list the Sacramento  splittail as threatened. The investigation concluded that Ms.  MacDonald stood to gain financially by the decision and therefore  should have recused herself.
On November 30, 2007, Senator Wyden sent a letter to the Inspector  General requesting an investigation of potential inappropriate  involvement by Ms. MacDonald on 18 ESA decisions. Two more  species were subsequently added to this investigation.
section_title: Objective 1: The Service’s selection process and current status of reviews
subsections: section_title: The selection process the Service followed varied by region
section_title: On May 30, 2007, Director Hall held a conference call with the regional
paragraphs: directors to communicate Deputy Secretary Scarlett’s directive to examine  decisions reviewed by Ms. MacDonald that could require revision because  of her involvement.
Director Hall delegated the selection process to the regional directors and  asked that they consult their field offices.
Director Hall said the selection process should include any type of ESA  decision made during Ms. MacDonald’s time in office.
The regions were given the month of June to select decisions for potential  revision.
Director Hall granted the regions considerable discretion in making their  selections, deferring to them to submit decisions for potential revision.
section_title: Objective 1: The Service’s selection process and current status of reviews
subsections: section_title: Regional selection processes varied: in one regional office, a few staff
paragraphs: met to discuss decisions; in another, a systematic process was  undertaken, including developing memos of instruction, reviewing decision files, and holding conference calls with field offices.
Regional offices incorporated input from their field offices to varying  degrees; a few interacted little or not at all with field staff in making  their selections.
Four of the eight regions reviewed documents from their decision files;  many regional staff stated that they already knew which decisions  might warrant revision without reviewing their records.
The universe of decisions reviewed varied slightly by region: some  regions reviewed decisions made through 2006; others reviewed  decisions made during 2007.
section_title: Objective 1: The Service’s selection process and current status of reviews
subsections: section_title: The regions generally applied three criteria to identify decisions for potential revision:
paragraphs: 1. Ms. MacDonald influenced the decision directly; 2. the scientific basis of the decision was compromised; and 3. the decision was significantly changed and resulted in a potentially  negative impact on the species.
section_title: Objective 1: The Service’s selection process and current status of reviews
subsections: section_title: The Service’s selection process identified eight decisions
paragraphs: At the end of the selection process, the regional offices discussed  the results with Director Hall and submitted memos to the Director,  listing 11 decisions for potential revision.
One of the decisions, the Mexican garter snake, was subsequently withdrawn from the list after further discussion determined that the  decision was made internally by Service headquarters.
On July 12, 2007, Director Hall sent a memo to Deputy  Secretary Scarlett reporting that 10 decisions submitted by the  regions would be reviewed.
section_title: Objective 1: The Service’s selection process and current status of reviews
subsections: section_title: On July 19, 2007, 2 decisions were withdrawn by region 1—bull trout
paragraphs: and marbled murrelet—after determining that neither decision involved  the inappropriate use of science, but rather involved policy  interpretations.
On July 20, 2007, Director Hall sent a memo to Deputy Secretary  Scarlett revising the original list of decisions based on the region 1  withdrawals, changing the total from 10 to 8.
Of the 8 decisions, 6 were critical habitat designations.
section_title: Objective 1: The Service’s selection process and current status of reviews
subsections: section_title: Result of the Service’s selection process
paragraphs: Reduced acreage to about 1 percent of scientific  recommendation Reduced range area by about half Reversed finding to “not substantial”
section_title: Objective 1: The Service’s selection process and current status of reviews
subsections: section_title: The Service concluded that seven of the eight decisions warranted revision
paragraphs: Director Hall has stated that revising the decisions is a high priority.
The Service has proposed amended rules for three decisions.
The Service is planning to initiate one status review on or before  May 1, 2008 and propose one revised critical habitat rule on or  before August 29, 2008.
The Service is determining time frames for addressing two other  decisions.
The Service is not planning to revise one decision because it  concluded that the critical habitat designation represents a  scientifically supportable and reasonable range for the species.
section_title: Objective 1: The Service’s selection process and status of reviews
subsections: section_title: Status of the decisions selected for potential revision
paragraphs: Service actions to address decision Published an amended proposed critical habitat on November 28, 2007  (72 Fed. Reg. 67428).
The Service and the Plaintiffs are negotiating a settlement agreement regarding a date for issuing proposed and final revisions of the critical  habitat designation for this species  Propose a revised critical habitat rule on or before August 29, 2008.  Issue final revised critical habitat rule on or before August 31, 2009.
Initiate a status review on or before May 1, 2008.  Issue a 12-month  finding on or before June 1, 2010.
Withdrew proposed delisting and published an amended proposed  listing rule on November 7, 2007 (72 Fed. Reg. 62992).
Revisit critical habitat when listing is final and funds are available.
Published a proposed rule describing revised critical habitat on February  28, 2008 (73 Fed. Reg. 10860).
section_title: Objective 2: Decisions excluded from the Service’s selection process
subsections: section_title: Certain types of decisions were excluded from the Service’s selection process
paragraphs: Following criterion 1, the Service excluded decisions reviewed by   Interior officials other than Ms. MacDonald.
section_title: Objective 2: Decisions excluded from the Service’s selection process
paragraphs: While Ms. MacDonald was the primary reviewer of most ESA decisions, other Interior officials were also involved.
Example: Miami blue butterfly The Service received a petition to list the Miami blue butterfly on an emergency  basis and reviewed the species’ status to determine if such listing was  warranted. After review, Service officials at all levels  supported a recommendation for listing. Citing a  Florida state management plan and existence of  a captive-bred population, however, an Interior  official besides Ms. MacDonald determined that  emergency listing was not warranted, and the blue  butterfly was designated as a candidate instead of a  listed species.
section_title: Objective 2: Decisions excluded from the Service’s selection process
paragraphs: Following criterion 2, the Service excluded policy decisions that  limited the application of science.
section_title: Objective 2: Decisions excluded from the Service’s selection process
paragraphs: Under Ms. MacDonald, several informal policies were established  that influenced how science was to be used when making ESA  decisions.
Petition guidance: Service staff cited a practice whereby they  were limited to using only the information contained in a  petition when making a decision. They could, however, use  information external to the petition if such information would  support a decision that listing was not warranted.
Recovery plans: A practice was developed that Service staff  could generally not use or cite recovery plans when  developing critical habitat designations.
section_title: Objective 2: Decisions excluded from the Service’s selection process
paragraphs: Defining occupancy: Under Ms. MacDonald, the ESA wording  “occupied by the species at the time it is listed” was narrowly  applied when designating critical habitat.
After the Service proposed critical habitat  for the bull trout, Ms. MacDonald  questioned Service biologists’  conclusions about the species’ occupied  habitat. As a result, some proposed  critical habitat areas were removed, in  part because occupancy by the species  could not be ascertained.
section_title: Objective 2: Decisions excluded from the Service’s selection process
paragraphs: Following criterion 3, the Service excluded decisions that were  changed but not significantly or to the point of negative impact on  the species.
section_title: Objective 2: Decisions excluded from the Service’s selection process
subsections: section_title: Under Ms. MacDonald’s influence, subterranean waters were removed from the animals’ critical habitat designation. Service staff said they believed that the exclusion of such habitats would not significantly affect the species because aboveground waters were more important habitat. They also acknowledged that not much is known about these species’ use of subterranean waters.
section_title: Objective 2: Decisions excluded from the Service’s selection process
subsections: section_title: Additionally, we identified six other categories of decisions that, in some or all cases, were excluded from the Service’s selection process.
paragraphs: 1. In some cases, decisions that already had been addressed by the  courts were excluded from the Service’s selection process.
section_title: Objective 2: Decisions excluded from the Service’s selection process
paragraphs: 2. Decisions that could not be reversed were excluded from the  Service’s selection process.
Example: Palos Verdes blue butterfly Navy-owned land that was critical habitat for the Palos Verdes blue butterfly was exchanged after involvement by Ms. MacDonald  in a section 7 consultation, and the habitat of the species’ last  known wild population was destroyed by development. Had the  habitat not already disappeared, Service field staff believe the decision would warrant revisiting.
section_title: Objective 2: Decisions excluded from the Service’s selection process
paragraphs: 3.  In some cases, decisions were excluded from the Service’s selection  process where revising the decision was determined to be an  inefficient use of resources because it would not significantly alter the  species’ recovery.
Example: Spikedace and loach minnow Ms. MacDonald limited the fishes’ critical habitat to those areas that had  been occupied within the previous 10 years,  reducing the total area of critical habitat  designated. Service staff did not believe the  change would significantly alter the fishes’  recovery and therefore felt that revisiting the  decision would not be an efficient use of  resources.
section_title: Objective 2: Decisions excluded from the Service’s selection process
paragraphs: 4. Decisions were excluded from the Service’s selection process where it  could not be conclusively determined that Ms. MacDonald changed the  decision. Service staff cited instances where they believed that Ms.  MacDonald had changed decisions, but because the documentation  was not clear, it could not be determined for certain if the changes  could be attributed to her. 5. Decisions that were implicitly attributed to Ms. MacDonald were  excluded from the Service’s selection process. Service staff described  a climate under Ms. MacDonald where they were continually  questioned about their scientific reasoning; staff said they learned to  anticipate what would be approved—primarily with regard to critical  habitat designations—and wrote their decisions accordingly.
section_title: Objective 2: Decisions excluded from the Service’s selection process
paragraphs: 6. Decisions were excluded from the Service’s selection process where  Ms. MacDonald did not change the final outcome but may have  inappropriately affected supporting scientific information in the  decision.
After a federal court required the Service to re-evaluate the species’  threatened status, Ms. MacDonald raised concerns about a statistical approach the Service  had applied in analyzing the species’ population. In  the final decision, she edited information regarding  the statistical analysis. Service staff said that these  edits could make it harder to use the scientific  analysis in the future.
section_title: Concluding Observations
subsections: section_title: The Service was given the opportunity to identify all ESA decisions potentially warranting revision because of undue political influence by Ms. MacDonald. The Service’s selection process led it to identify 8 decisions—less than 4 percent of more than 200 decisions reviewed— 7 of which it has determined will need revision. Ms. MacDonald was significantly involved, and in some cases possibly inappropriately so, with more than 8 decisions. Nevertheless, additional decisions were not selected for further review for a variety of reasons; for example, her involvement did not always result in the reversal of a decision. The Service believes that all decisions inappropriately influenced by Ms. MacDonald and meriting revision are being addressed.
section_title: Concluding Observations
subsections: section_title: In a broader context, questions remain about the extent to which other Interior officials may have inappropriately influenced ESA decisions and whether broader ESA policies should be revisited. Under the original direction from Deputy Secretary Scarlett and the three selection criteria followed by the Service, a variety of ESA decisions were excluded from the selection process. Broadening the scope of the review might have resulted in the selection of more decisions, but it is unclear to what extent.
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