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

Letter

Background

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).

Several Types of Decisions Were Excluded from the Service’s Review of Potentially Inappropriately Influenced ESA Decisions

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.

The Service’s May 2005 Informal Guidance Had No Substantive Effect on 90-Day Petition Findings, Although Other Challenges Exist

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.

Notwithstanding the Service’s May 2005 Informal Guidance, Additional Information Collected by Service Biologists Was Used to Support and Refute 90-day Petitions

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.

The Service Faces Challenges in Processing 90-day Petitions in a Timely Manner and in Responding to Court Decisions Issued since 2004

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.

Recovery Criteria for Threatened and Endangered Species Were Generally Met in Final Delisting Decisions but Not in Proposed Delisting Decisions

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.

Concluding Observations

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.

Agency Comments

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.

GAO Contacts and Staff Acknowledgments

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.

Appendix I: Objectives, Scope, and Methodology

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.

Appendix II: Ninety-Day Petition Findings Issued from 2005 through 2007

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.

Appendix III: Briefing Slides

Introduction

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.

Introduction

On May 9, 2007, the House Natural Resources Committee held a

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.

Objectives

Subsequent to these events, we were requested to examine:

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.

Scope and Methodology

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.

Background

The purpose of the Endangered Species Act of 1973 is to conserve

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.

Background

Key types of ESA decisions

Background

Responsibilities for ESA implementation

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.

Background

Service regions

Background

The Service forwards listing decisions to Interior’s Office of Assistant

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.

Background

On November 27, 2007, Interior’s Inspector General reported on a an

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.

Objective 1: The Service’s selection process and current status of reviews

The selection process the Service followed varied by region

On May 30, 2007, Director Hall held a conference call with the regional

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.

Objective 1: The Service’s selection process and current status of reviews

Regional selection processes varied: in one regional office, a few staff

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.

Objective 1: The Service’s selection process and current status of reviews

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.

Objective 1: The Service’s selection process and current status of reviews

The Service’s selection process identified eight decisions

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.

Objective 1: The Service’s selection process and current status of reviews

On July 19, 2007, 2 decisions were withdrawn by region 1—bull trout

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.

Objective 1: The Service’s selection process and current status of reviews

Result of the Service’s selection process

Reduced acreage to about 1 percent of scientific recommendation Reduced range area by about half Reversed finding to “not substantial”

Objective 1: The Service’s selection process and current status of reviews

The Service concluded that seven of the eight decisions warranted revision

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.

Objective 1: The Service’s selection process and status of reviews

Status of the decisions selected for potential revision

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).

Objective 2: Decisions excluded from the Service’s selection process

Certain types of decisions were excluded from the Service’s selection process

Following criterion 1, the Service excluded decisions reviewed by Interior officials other than Ms. MacDonald.

Objective 2: Decisions excluded from the Service’s selection process

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.

Objective 2: Decisions excluded from the Service’s selection process

Following criterion 2, the Service excluded policy decisions that limited the application of science.

Objective 2: Decisions excluded from the Service’s selection process

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.

Objective 2: Decisions excluded from the Service’s selection process

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.

Objective 2: Decisions excluded from the Service’s selection process

Following criterion 3, the Service excluded decisions that were changed but not significantly or to the point of negative impact on the species.

Objective 2: Decisions excluded from the Service’s selection process

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.

Objective 2: Decisions excluded from the Service’s selection process

Additionally, we identified six other categories of decisions that, in some or all cases, were excluded from the Service’s selection process.

1. In some cases, decisions that already had been addressed by the courts were excluded from the Service’s selection process.

Objective 2: Decisions excluded from the Service’s selection process

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.

Objective 2: Decisions excluded from the Service’s selection process

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.

Objective 2: Decisions excluded from the Service’s selection process

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.

Objective 2: Decisions excluded from the Service’s selection process

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.

Concluding Observations

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.

Concluding Observations

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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