U.S. Fish and Wildlife Service
Endangered Species Act Decision Making
Gao ID: GAO-08-688T May 21, 2008
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.
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.
GAO-08-688T, U.S. Fish and Wildlife Service: Endangered Species Act Decision Making
This is the accessible text file for GAO report number GAO-08-688T
entitled 'U.S. Fish And Wildlife Service: Endangered Species Act
Decision Making' which was released on May 21, 2008.
This text file was formatted by the U.S. Government Accountability
Office (GAO) to be accessible to users with visual impairments, as part
of a longer term project to improve GAO products' accessibility. Every
attempt has been made to maintain the structural and data integrity of
the original printed product. Accessibility features, such as text
descriptions of tables, consecutively numbered footnotes placed at the
end of the file, and the text of agency comment letters, are provided
but may not exactly duplicate the presentation or format of the printed
version. The portable document format (PDF) file is an exact electronic
replica of the printed version. We welcome your feedback. Please E-mail
your comments regarding the contents or accessibility features of this
document to Webmaster@gao.gov.
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed
in its entirety without further permission from GAO. Because this work
may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this
material separately.
Testimony before the Committee on Natural Resources, House of
Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 10:00 a.m. EDT:
May 21, 2008:
U.S. Fish And Wildlife Service:
Endangered Species Act Decision Making:
Statement of Robin M. Nazzaro:
Director:
Natural Resources and Environment:
GAO-08-688T:
GAO Highlights:
Highlights of GAO-08-688T, a testimony before the Committee on Natural
Resources, House of Representatives.
Why GAO Did This Study:
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.
What GAO Found:
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.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-688T]. For more
information, contact Robin M. Nazzaro at (202) 512-3841 or
nazzaror@gao.gov.
[End of section]
Mr. Chairman and Members of the Committee:
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.[Footnote 1]
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.[Footnote 2] 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.[Footnote 3]
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.[Footnote 4] 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.[Footnote 5]
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.[Footnote 6] 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."[Footnote 7] 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.[Footnote
8] 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.[Footnote
9]
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.[Footnote 10] 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.[Footnote 11] 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,[Footnote 12] 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.[Footnote 13]
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.
Summary:
Under the criteria the Service used to select decisions to review for
possible inappropriate influence, several types of ESA decisions were
excluded. First, while the Service focused solely on Ms. MacDonald, we
found that other Interior officials also influenced some ESA decisions.
For example, 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 besides Ms. MacDonald determined that
emergency listing was not warranted, and the blue butterfly was
designated as a candidate instead of 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. Third, the Service excluded
decisions that were changed but not significantly or to the point of
negative impact on the species. Finally, we identified several other
categories of decisions that in some or all cases were excluded from
the Service's selection process. For example, decisions were excluded
from the Service's selection process if it was determined that the
decision could not be reversed or if it could not be conclusively
determined that Ms. MacDonald changed the decision.
While the Service's May 2005 informal guidance had no substantive
effect on the processing of 90-day petitions, the Service still faces
other challenges in processing these petitions. Stakeholders have
expressed concern that 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. In our survey of 54 90-day
petition findings issued by the Service from 2005 through 2007, we
found that biologists used information in addition to that cited by the
petitioner 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. 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 support and refute issues raised in the petition. Although the
May 2005 informal guidance did not have a substantive effect on the
Service's processing of 90-day petitions, the Service faces challenges
in processing 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). Additionally, the Service faces several challenges in
responding to court decisions issued since 2004. For example, the
Service has not developed new official guidance on how to process of 90-
day petitions after a portion of the prior guidance was invalidated by
the courts.
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
because some recovery criteria were outdated or otherwise not
achievable. When the delistings were first proposed, however, only two
of the eight species had completely met all their respective recovery
criteria. While the recovery criteria were not completely met in every
case for each of the species 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. Since the ESA was
amended in 1988, the Service has been required to incorporate in each
recovery plan, to the maximum extent practicable, objective, measurable
criteria that when met would result in a determination, in accordance
with the provisions of the ESA, that the species should be removed from
the list of threatened and endangered species (i.e., delisted). Courts
have held that the Service must address the ESA's five threat factors
for listing/delisting in developing recovery criteria, to the maximum
extent practicable. In a 2006 report, we found that only 5 of the 107
recovery plans we reviewed included recovery criteria that addressed
all five threat factors. We recommended that the Service include in
recovery planning guidance 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. Assuming successful
implementation of this directive, future delistings should meet the
criteria laid out in recovery plans, except in situations where new
information indicates criteria are no longer valid.
Although we requested comments from Interior on our findings and
conclusions, none were provided in time for them to be included as part
of this testimony.
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).[Footnote 14]
Table 1: Key Types of ESA Decisions:
Decision: Petition to list or delist (90-day petition finding);
Description: Request for the Service to consider undertaking a 12-month
review to determine whether listing or delisting a species is
warranted;
Information used to make decision: Information presented in the
petition or information readily accessible in Service files.
Decision: Listing, delisting;
Description: Analysis of whether a species warrants inclusion on or
removal from the endangered or threatened list on the basis of its
status;
Information used to make decision: Best available scientific and
commercial data.
Decision: Critical habitat;
Description: Designation of habitat determined to be essential to a
species' conservation;
Information used to make decision: Best available scientific data,
taking into consideration information on economic and other impacts.
Decision: Recovery plan;
Description: Site-specific management plan for the conservation of
listed species;
Information used to make decision: Information from scientific experts,
stakeholders, and others.
Decision: Section 7 consultation;
Description: Determination of whether federal actions are likely to
jeopardize the continued existence of listed species or result in the
destruction or adverse modification of critical habitat;
Information used to make decision: Best available scientific and
commercial data.
Decision: Habitat conservation plan;
Description: Development of a plan that allows landowners "incidental
take" of listed species in conjunction with mitigating actions that
protect the listed species on their land;
Information used to make decision: Not specified.
Source: GAO analysis of the ESA, federal regulations, and Service
policies.
[End of table]
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.[Footnote 15] After further review, the
Service concluded that seven of the eight decisions warranted revision
(see table 2).
Table 2: Result of the Service's Selection Process and the Status of
the Decisions Selected for Potential Revision:
Species: Twelve species of Hawaiian picture-wing flies;
Decision: Proposed critical habitat;
Description of Ms. MacDonald's involvement: Reduced acreage to about 1
percent of scientific recommendation;
Service actions to address decision: Published an amended proposed
critical habitat on November 28, 2007 (72 Fed. Reg. 67428).
Species: Arroyo toad;
Decision: Final critical habitat;
Description of Ms. MacDonald's involvement: Reduced area by more than
85 percent;
Service actions to address decision: The Service and plaintiffs are
negotiating a settlement agreement regarding a date for issuing
proposed and final revisions of the critical habitat designation for
this species.
Species: California red-legged frog;
Decision: Final critical habitat;
Description of Ms. MacDonald's involvement: Directed the Service to use
minimum range and disregard some scientific studies;
Service actions to address decision: Propose a revised critical habitat
rule on or before August 29, 2008. Issue final revised critical habitat
rule on or before August 31, 2009.
Species: White-tailed prairie dog;
Decision: 90-day petition finding;
Description of Ms. MacDonald's involvement: Reversed finding to "not
substantial";
Service actions to address decision: Initiate a status review on or
before May 1, 2008. Issue a 12-month finding on or before June 1, 2010.
Species: Preble's meadow jumping mouse;
Decision: 12-month review finding: proposed delisting;
Description of Ms. MacDonald's involvement: Directed the Service to use
minority scientific opinion to support delisting;
Service actions to address decision: Withdrew proposed delisting and
published an amended proposed listing rule on November 7, 2007 (72 Fed.
Reg. 62992).
Species: Preble's meadow jumping mouse;
Decision: Final critical habitat;
Description of Ms. MacDonald's involvement: Excluded three counties
from critical habitat on the basis of habitat conservation plans that
were not finalized;
Service actions to address decision: Revisit critical habitat when
listing is final and funds are available.
Species: Canada lynx;
Decision: Final critical habitat;
Description of Ms. MacDonald's involvement: Excluded U.S. Forest
Service lands and private lands;
Service actions to address decision: Published a proposed rule
describing revised critical habitat on February 28, 2008 (73 Fed. Reg.
10860).
Species: Southwestern willow flycatcher;
Decision: Final critical habitat;
Description of Ms. MacDonald's involvement: Reduced range area by about
half;
Service actions to address decision: No action. The Service did not
recommend revision of the critical habitat because the reduced range
was scientifically supportable.
Source: GAO.
[End of table]
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."[Footnote 16] 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.[Footnote 17] 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.[Footnote 18] 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.[Footnote 19] A component of this document was
invalidated by the District of Columbia district court in June
2004.[Footnote 20] 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.[Footnote 21]
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).
Table 3: Outcomes of the Service's 90-day Petition Findings Issued from
2005 through 2007:
Issuance date for 90-day petition findings: 54 petition findings
included in our survey sample: Jan. 2005-Apr. 2005;
Number of positive, or "substantial," petition findings: 4;
Number of negative, or "not substantial," petition findings: 2;
Total number of petition findings: 6;
Percentage of negative findings: 33%.
Issuance date for 90-day petition findings: 54 petition findings
included in our survey sample: May 2005-Nov. 2006;
Number of positive, or "substantial," petition findings: 13;
Number of negative, or "not substantial," petition findings: 17;
Total number of petition findings: 30;
Percentage of negative findings: 57.
Issuance date for 90-day petition findings: 54 petition findings
included in our survey sample: Dec. 2006-Dec. 2007;
Number of positive, or "substantial," petition findings: 8;
Number of negative, or "not substantial," petition findings: 10;
Total number of petition findings: 18;
Percentage of negative findings: 56.
Issuance date for 90-day petition findings: 54 petition findings
included in our survey sample: Subtotal;
Number of positive, or "substantial," petition findings: 25;
Number of negative, or "not substantial," petition findings: 29;
Total number of petition findings: 54;
Percentage of negative findings: 54%.
Issuance date for 90-day petition findings: 13 petition findings
excluded from our survey sample: Jan. 2005-Dec. 2007;
Number of positive, or "substantial," petition findings: 2;
Number of negative, or "not substantial," petition findings: 11[A];
Total number of petition findings: 13;
Percentage of negative findings: 85.
Issuance date for 90-day petition findings: Total;
Number of positive, or "substantial," petition findings: 27;
Number of negative, or "not substantial," petition findings: 40;
Total number of petition findings: 67;
Percentage of negative findings: 60%.
Source: GAO.
Note: The first time period, January 2005 through April 2005, includes
the 90-day petition findings in our sample issued before the May 2005
informal guidance was being used. The second time period, May 2005
through November 2006, includes the 18-month period when the May 2005
information guidance was being used. The third time period, December
2006 through December 2007, includes the 90-day petition findings in
our sample issued after the May 2005 informal guidance was superseded
by new draft guidance in November 2006.
[A] Five of these decisions have been or are being revised as the
result of litigation, and two additional decisions were involved in
ongoing litigation as of March 31, 2008.
[End of table]
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.[Footnote 22]
Table 4: How Service Biologists Used Additional Information from 2005
through 2007 to Evaluate 54 90-day Petitions Included in Our Survey:
Issuance date for 90-day petition findings: Jan. 2005-Apr. 2005;
Support and refute: 2;
Support only: 1;
Refute only: 2;
Did not use additional information: 1;
Total: 6.
Issuance date for 90-day petition findings: May 2005-Nov. 2006;
Support and refute: 17;
Support only: 5;
Refute only: 4;
Did not use additional information: 4;
Total: 30.
Issuance date for 90-day petition findings: Dec. 2006-Dec. 2007;
Support and refute: 13;
Support only: 1;
Refute only: 2;
Did not use additional information: 2;
Total: 18.
Issuance date for 90-day petition findings: Total;
Support and refute: 32;
Support only: 7;
Refute only: 8;
Did not use additional information: 7; Total: 54.
Source: GAO.
[End of table]
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).[Footnote 23] 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.[Footnote 24] In
2004, a federal district court issued a nationwide injunction striking
down this portion of the guidance.[Footnote 25] 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 . . . , [and] 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 [the Service]."[Footnote 26] Since then, several other
courts have reached similar conclusions.[Footnote 27] 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.[Footnote 28] 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."[Footnote 29] 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.[Footnote 30] 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 [that call]." 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.[Footnote 31]
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.
Table 5: The Extent to Which Recovery Criteria Were Met for the Eight
U.S. Species Delisted from 2000 through 2007 Because of Recovery:
Species: Gray wolf: western Great Lakes distinct population segment;
Proposed Delisting Rule: 71 Fed. Reg. 15266 (Mar. 27, 2006);
Recovery criteria met: Completely;
Final Delisting Rule: 72 Fed. Reg. 6051 (Feb. 8, 2007);
Recovery criteria met: Completely.
Species: Hoover's woolly-star;
Proposed Delisting Rule: 66 Fed. Reg. 13474 (Mar. 6, 2001);
Recovery criteria met: Completely;
Final Delisting Rule: 68 Fed. Reg. 57829 (Oct. 7, 2003);
Recovery criteria met: Completely.
Species: Bald eagle[A];
Proposed Delisting Rule: 64 Fed. Reg. 36454 (July 6, 1999);
Recovery criteria met: Partially;
Final Delisting Rule: 72 Fed. Reg. 37345 (July 9, 2007);
Recovery criteria met: Completely.
Species: Eggert's sunflower;
Proposed Delisting Rule: 69 Fed. Reg. 17627 (Apr. 5, 2004);
Recovery criteria met: Partially;
Final Delisting Rule: 70 Fed. Reg. 48482 (Aug. 18, 2005);
Recovery criteria met: Completely.
Species: Robbins' cinquefoil;
Proposed Delisting Rule: 66 Fed. Reg. 30860 (June 8, 2001);
Recovery criteria met: Partially;
Final Delisting Rule: 67 Fed. Reg. 54968 (Aug. 27, 2002);
Recovery criteria met: Completely.
Species: Grizzly bear: Yellowstone distinct population segment;
Proposed Delisting Rule: 70 Fed. Reg. 69854 (Nov. 17, 2005);
Recovery criteria met: Partially;
Final Delisting Rule: 72 Fed. Reg. 14865 (Mar. 29, 2007);
Recovery criteria met: Partially.
Species: Columbian white-tailed deer: Douglas County distinct
population segment;
Proposed Delisting Rule: 64 Fed. Reg. 25263 (May 11, 1999);
Recovery criteria met: Partially;
Final Delisting Rule: 68 Fed. Reg. 43647 (July 24, 2003);
Recovery criteria met: Partially.
Species: Aleutian Canada goose;
Proposed Delisting Rule: 64 Fed. Reg. 42058 (Aug. 3, 1999);
Recovery criteria met: Partially;
Final Delisting Rule: 66 Fed. Reg. 15643 (Mar. 20, 2001);
Recovery criteria met: Partially.
Sources: U.S. Fish and Wildlife Service and the Federal Register.
[A] A federal district court prevented the delisting of the Sonoran
Desert population of the bald eagle, pending a 12-month status review
and lawful determination of its status as a distinct population
segment.
[End of table]
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.[Footnote 32] 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.[Footnote 33] In a 2006
report, we provided information on 107 randomly sampled recovery plans
covering about 200 species.[Footnote 34] 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.
[End of section]
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.[Footnote 35] 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.
Table 6: Selected Survey Questions:
General questions:
* Was this the first 90-day petition finding you drafted in your
career?.
* What was your role in evaluating this 90-day petition?.
* Was there information in Service files related to this petition?.
* What is the name of, or how do you refer to, the Service's petition
guidance that you followed in evaluating this 90-day petition?.
Specific questions addressing information in Service files and
information external to Service files:
* Did you use information [in Service files/external to Service files]
in drafting your decision on the petition?.
* Did you use information [in Service files/external to Service files]
to further support any specific issues raised in the petition?.
* If you did not use information [in Service files/ external to Service
files] to further support any specific issues raised in the petition,
was this because, (a) information in Service files simply did not
support the petition, (b) it is against Service policy to use
information [in Service files/external to Service files] this way, or
(c) some other reason?.
* Did you use information [in Service files/external to Service files]
to refute any specific issues raised in the petition?.
* In your opinion, had you used information [in Service files/external
to Service files] in evaluating the petition, how likely is it that the
information would have changed your finding on this petition?.
Specific questions on the definition of readily available:
* Would you consider information obtained through an exhaustive
literature search or by soliciting the information from another entity
"readily available"?.
* How would you define "readily available"?.
Concluding question:
Would you like to share any additional information regarding the
Service's processing of 90-day petition findings or the Service's
overall decision making under the ESA?.
Source: GAO.
[End of table]
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.
[End of section]
Appendix II: Ninety-Day Petition Findings Issued from 2005 through
2007:
Ninety-day petition findings included in our survey:
Species: Arizona brome and nodding needlegrass;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 70 Fed. Reg. 3504 (Jan. 25, 2005).
Species: Cicurina cueva (a spider);
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 70 Fed. Reg. 5123 (Feb. 1, 2005).
Species: Gentry indigo bush;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 70 Fed. Reg. 5401 (Feb. 2, 2005).
Species: Porter feathergrass;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 70 Fed. Reg. 5959 (Feb. 4, 2005).
Species: Idaho springsnail;
Petitioned action: Delist;
90-day petition finding: Substantial;
Federal Register citation: 70 Fed. Reg. 20512 (Apr. 20, 2005).
Species: Jackson Lake springsnail, Harney Lake springsnail, and
Columbia springsnail;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 70 Fed. Reg. 20512 (Apr. 20, 2005)[A].
Species: California spotted owl;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 70 Fed. Reg. 35607 (June 21, 2005).
Species: American eel;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 70 Fed. Reg. 38849 (July 6, 2005).
Species: Roundtail chub, lower Colorado River basin distinct population
segment, and headwater chub;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 70 Fed. Reg. 39981 (July 12, 2005).
Species: Wright fishhook cactus;
Petitioned action: Delist;
90-day petition finding: Not substantial;
Federal Register citation: 70 Fed. Reg. 44544 (Aug. 3, 2005).
Species: Furbish lousewort;
Petitioned action: Delist;
90-day petition finding: Not substantial;
Federal Register citation: 70 Fed. Reg. 46467 (Aug. 10, 2005).
Species: Slackwater darter;
Petitioned action: Delist;
90-day petition finding: Not substantial;
Federal Register citation: 70 Fed. Reg. 46465 (Aug. 10, 2005).
Species: Gray wolf, northern Rocky Mountain distinct population
segment;
Petitioned action: Delist;
90-day petition finding: Substantial;
Federal Register citation: 70 Fed. Reg. 61770 (Oct. 26, 2005).
Species: Uinta mountain snail;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 70 Fed. Reg. 69303 (Nov. 15, 2005).
Species: Peirson's milkvetch;
Petitioned action: Delist;
90-day petition finding: Substantial;
Federal Register citation: 70 Fed. Reg. 71795 (Nov. 30, 2005).
Species: Gray wolf in Nevada;
Petitioned action: Delist;
90-day petition finding: Not substantial;
Federal Register citation: 70 Fed. Reg. 73190 (Dec. 9, 2005).
Species: Northern Mexican garter snake;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 71 Fed. Reg. 315 (Jan. 4, 2006).
Species: American dipper, Black Hills, South Dakota, population;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 4341 (Jan. 26, 2006).
Species: Ninety-day petition findings included in our survey:
Mussentuchit gilia;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 4337 (Jan. 26, 2006).
Species: Polar bear;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 71 Fed. Reg. 6745 (Feb. 9, 2006).
Species: Island marble butterfly;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 71 Fed. Reg. 7497 (Feb. 13, 2006).
Species: Douglas County pocket gopher;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 7715 (Feb. 14, 2006).
Species: Henderson's checkermallow;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 8252 (Feb. 16, 2006).
Species: Black Hills mountainsnail;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 9988 (Feb. 28, 2006).
Species: Andrews' dune scarab beetle;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 26444 (May 5, 2006).
Species: California brown pelican;
Petitioned action: Delist;
90-day petition finding: Substantial;
Federal Register citation: 71 Fed. Reg. 29908 (May 24, 2006).
Species: Sand Mountain blue butterfly;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 71 Fed. Reg. 44988 (Aug. 8, 2006).
Species: Casey's June beetle;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 71 Fed. Reg. 44960 (Aug. 8, 2006).
Species: Thorne's hairstreak butterfly;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 44980 (Aug. 8, 2006).
Species: Hermes copper butterfly;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 44966 (Aug. 8, 2006).
Species: Sixteen insect species from the Algodones Sand Dunes, Imperial
County, California;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 47765 (Aug. 18, 2006).
Species: Island night lizard;
Petitioned action: Delist;
90-day petition finding: Substantial;
Federal Register citation: 71 Fed. Reg. 48900 (Aug. 22, 2006).
Species: Usnea longissima (a lichen);
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 56937 (Sept. 28, 2006).
Species: Anacapa deer mouse;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 56932 (Sept. 28, 2006).
Species: Plymouth red-bellied turtle;
Petitioned action: Delist;
90-day petition finding: Substantial;
Federal Register citation: 71 Fed. Reg. 58363 (Oct. 3, 2006).
Species: Columbian sharp-tailed grouse;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 67318 (Nov. 21, 2006).
Species: Tricolored blackbird;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 70483 (Dec. 5, 2006).
Species: Sacramento Mountains thistle;
Petitioned action: Delist;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 70479 (Dec. 5, 2006).
Species: Northern water snake, upper tidal Potomac River population;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 70715 (Dec. 6, 2006).
Species: Uinta Basin hookless cactus;
Petitioned action: Delist;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 75215 (Dec. 14, 2006).
Species: Pariette cactus;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 71 Fed. Reg. 75215 (Dec. 14, 2006)[B].
Species: Jollyville Plateau salamander;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 72 Fed. Reg. 6699 (Feb. 13, 2007).
Species: San Felipe gambusia;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 72 Fed. Reg. 6703 (Feb. 13, 2007).
Species: DeBeque milkvetch;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 72 Fed. Reg. 6998 (Feb. 14, 2007).
Species: Longnose sucker, Monongohela River population;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 72 Fed. Reg. 10477 (Mar. 8, 2007).
Species: Mt. Charleston blue butterfly;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 72 Fed. Reg. 29933 (May 30, 2007).
Species: Yellow-billed loon;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 72 Fed. Reg. 31256 (June 6, 2007).
Species: Utah (desert) valvata snail;
Petitioned action: Delist;
90-day petition finding: Substantial;
Federal Register citation: 72 Fed. Reg. 31264 (June 6, 2007).
Species: Bliss Rapids snail;
Petitioned action: Delist;
90-day petition finding: Substantial;
Federal Register citation: 72 Fed. Reg. 31250 (June 6, 2007).
Species: Bison, Yellowstone National Park herd;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 72 Fed. Reg. 45717 (Aug. 15, 2007).
Species: Goose Creek milkvetch;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 72 Fed. Reg. 46023 (Aug. 16, 2007).
Species: Kenk's amphipod, northern Virginia well amphipod, and a
copepod;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 72 Fed. Reg. 51766 (Sept. 11, 2007).
Species: Black-footed albatross;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 72 Fed. Reg. 57278 (Oct. 9, 2007).
Species: Kokanee, Issaquah Creek summer run;
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 72 Fed. Reg. 59979 (Oct. 23, 2007).
Ninety-day petition findings excluded from our survey: Overturned or
settled as a result of litigation:
Species: Pygmy rabbit[C];
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 70 Fed. Reg. 29253 (May 20, 2005).
Species: Gunnison's prairie dog[D];
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 6241 (Feb. 7, 2006).
Species: Bald eagle, Sonoran Desert population[E];
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 51549 (Aug. 30, 2006).
Species: Greater sage grouse, Mono Basin area[F];
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 76057 (Dec. 19, 2006).
Species: Siskiyou Mountains salamander and Scott Bar salamander[G];
Petitioned action: List;
90-day petition finding: Not Substantial;
Federal Register citation: 72 Fed. Reg. 23886 (Apr. 25, 2006).
Ninety-day petition findings excluded from our survey: Uplistings:
Species: Florida scrub-jay;
Petitioned action: Uplist;
90-day petition finding: Not substantial;
Federal Register citation: 71 Fed. Reg. 4092 (Jan. 25, 2006).
Species: Utah prairie dog;
Petitioned action: Uplist;
90-day petition finding: Not Substantial;
Federal Register citation: 72 Fed. Reg. 7843 (Feb. 21, 2007).
Species: Grizzly bear, Yellowstone distinct population segment;
Petitioned action: Uplist;
90-day petition finding: Not substantial;
Federal Register citation: 72 Fed. Reg. 14865 (Mar. 29, 2007).
Ninety-day petition findings excluded from our survey: Ongoing
litigation:
Species: Giant Palouse earthworm[H];
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 72 Fed. Reg. 57273 (Oct. 9, 2007).
Species: Mountain whitefish in the Big Lost River, Idaho[I];
Petitioned action: List;
90-day petition finding: Not substantial;
Federal Register citation: 72 Fed. Reg. 59983 (Oct. 23, 2007).
Ninety-day petition findings excluded from our survey: International
species:
Species: Morelet's crocodile;
Petitioned action: Delist;
90-day petition finding: Substantial;
Federal Register citation: 71 Fed. Reg. 36743 (June 28, 2006).
Species: Twelve penguin species;
Petitioned action: List;
90-day petition finding: Substantial;
Federal Register citation: 72 Fed. Reg. 37695 (July 11, 2007).
Ninety-day petition findings excluded from our survey: Revision to
critical habitat:
Species: Indiana bat;
Petitioned action: Revise critical habitat;
90-day petition finding: Not substantial;
Federal Register citation: 72 Fed. Reg. 9913 (Mar. 6, 2007).
Source: U.S. Fish and Wildlife Service and the Federal Register.
[A] The Service published findings for the petition to list three snail
species and the petition to delist one snail species in the same
Federal Register notice.
[B] The Service published findings for the petition to delist the Uinta
Basin hookless cactus (found not substantial) and the petition to list
the Pariette cactus (found substantial) in the same Federal Register
notice.
[C] Western Watersheds Project v. Norton, Civ. No. 06-127, 2007 WL
2827375 (D.Idaho Sept. 6, 2007).
[D] Forest Guardians v. Kempthorne, Civ. No. 06-02115 (D.D.C.),
settlement filed June 29, 2007.
[E] Center for Biological Diversity v. Kempthorne, Civ. No. 07-0038,
2008 WL 659822 (D. Ariz. Mar. 6, 2008).
[F] Center for Biological Diversity v. United States Fish and Wildlife
Service, Civ. No. 07-4347 (N.D. Cal.), settlement filed Feb. 21, 2008.
[G] Center for Biological Diversity v. Kempthorne, Civ. No. 06-04186,
2007 WL 163244, (N.D. Cal. Jan. 19, 2007).
[H] Western Watersheds Project v. Kempthorne, Civ. No. 07-00409 (D.
Idaho), complaint filed Jan. 25, 2008.
[I] Palouse Prairie Foundation v. Kempthorne, Civ. No. 08-032 (E.D.
Wash.), complaint filed Jan. 24, 2008.
[End of table]
[End of section]
Appendix III: Briefing Slides:
U.S. Fish and Wildlife Service: Review of Endangered Species Act
Decision Making:
Briefing for the House Natural Resources Committee:
December 17, 2007 (Updated April 2008):
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.
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.
Results in Brief:
Applying three criteria, the Service‘s selection process, which varied
across regions, identified eight ESA decisions for potential revision.
* Director Hall granted the regions discretion to carry out the
selection process and each region incorporated varying degrees of field
input.
* The regions generally applied all of three selection criteria:
1. Ms. MacDonald influenced the decision directly.
2. The scientific basis of the decision was compromised.
3. The decision was significantly changed and resulted in a potentially
negative impact on the species.
* Upon further review, the Service concluded that seven of eight
selected decisions warranted revision.
* The Service proposed revisions on three decisions, is planning to
take action on two in 2008, and is determining time frames for
addressing two.
Excluded from the Service‘s selection process were:
* decisions made by Interior officials other than Ms. MacDonald;
* policy decisions that influenced how science was to be used;
* decisions that were changed, but not significantly or to the point of
having a negative impact on the species; and;
* Other decisions influenced by Ms. MacDonald but that, for various
reasons, might not warrant revisiting, such as decisions that had
already been addressed by the courts or were not feasible to reverse.
Background:
Overview of the ESA:
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.
Table: Key types of ESA decisions:
Decision: Petition to list (90-day petition finding)
Description: Request for the Service to consider undertaking a 12-month
review to determine whether listing a species is warranted.
Information used to make decision: Information presented in the
petition or information readily accessible in Service files.
Decision: Listing/delisting;
Description: Analysis of whether a species warrants inclusion on or
removal from the endangered or threatened list on the basis of its
status;
Information used to make decision: Best available scientific and
commercial data.
Decision: Critical habitat;
Description: Designation of habitat determined to be essential to a
species‘ conservation;
Information used to make decision: Best available scientific data,
taking into consideration information on economic and other impacts.
Decision: Recovery plan;
Description: Site-specific management plan for the conservation of
listed species;
Information used to make decision: Information from scientific experts,
stakeholders, and others.
Decision: Section 7 consultation;
Description: Determination of whether federal actions are likely to
jeopardize the continued existence of listed species or result in the
destruction or adverse modification of critical habitat;
Information used to make decision: Best available scientific and
commercial data.
Decision: Habitat conservation plan (HCP);
Description: Development of a plan that allows landowners ’incidental
take“of listed species in conjunction with mitigating actions that
protect the listed species on their land;
Information used to make decision: Not specified.
Source: ESA and U.S Fish and Wildlife Service regulations and policies.
[End of table]
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.
Figure: Service regions:
[See PDF for image]
This figure is a map of the United States indicating the eight Fish and
Wildlife Service regions.
[End of figure]
* 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.
Recent Interior Inspector General investigations:
* On November 27, 2007, Interior‘s Inspector General reported on 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.
* 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.
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.
Figure:
[See PDF for image]
This figure is a flow chart:
Criterion 1: Ms. MacDonald directly influenced decision;
Criterion 2: Science compromised;
Criterion 3: Significant change and potential negative effect on
species;
Yield: Eight decisions.
Source: GAO.
[End of figure]
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.
* 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.
Table: Result of the Service‘s selection process:
Region: 1;
Species: Twelve species of Hawaiian picture-wing flies;
Decision: Proposed critical habitat;
Description of MacDonald involvement: Reduced acreage to about 1
percent of scientific recommendation;
Date published: 8-15-06.
Region: 2;
Species: Southwestern willow flycatcher;
Decision: Final critical habitat;
Description of MacDonald involvement: Reduced range area by about half;
Date published: 10-19-05.
Region: 6;
Species: White-tailed prairie dog;
Decision: 90-day petition finding;
Description of MacDonald involvement: Reversed finding to ’not
substantial“;
Date published: 11-9-04.
Region: 6;
Species: Preble‘s meadow jumping mouse;
Decision: 12-month review finding/proposed delisting;
Description of MacDonald involvement: Directed the Service to use
minority scientific opinion to support delisting;
Date published: 2-2-05.
Region: 6;
Species: Preble‘s meadow jumping mouse;
Decision: Final critical habitat;
Description of MacDonald involvement: Excluded three counties from
critical habitat on basis of HCPs that were not finalized;
Date published: 6-23-03.
Region: 8;
Species: Arroyo toad;
Decision: Final critical habitat;
Description of MacDonald involvement: Reduced area by more than 85
percent;
Date published: 4-13-05.
Region: 8;
Species: California red-legged frog;
Decision: Final critical habitat;
Description of MacDonald involvement: Directed the Service to use
minimum range and disregard some scientific studies;
Date published: 4-13-06.
Source: GAO.
Note: Regions 3, 4, 5, and 7 did not submit any decisions. Also,
decisions regarding the bull trout, marbled murrelet, and Mexican
garter snake were submitted by the regions in the initial list of 11,
but subsequently withdrawn by the regions that submitted them.
[End of table]
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.
Table: Status of the decisions selected for potential revision:
Species: Twelve species of Hawaiian picture-wing flies;
Decision: Proposed critical habitat;
Service actions to address decision: Published an amended proposed
critical habitat on November 28, 2007 (72 Fed. Reg. 67428).
Species: Arroyo toad;
Decision: Final critical habitat;
Service actions to address decision: 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.
Species: California red-legged frog;
Decision: Final critical habitat;
Service actions to address decision: Propose a revised critical habitat
rule on or before August 29, 2008. Issue final revised critical habitat
rule on or before August 31, 2009.
Species: White-tailed prairie dog;
Decision: 90-day petition finding;
Service actions to address decision: Initiate a status review on or
before May 1, 2008. Issue a 12-month finding on or before June 1, 2010.
Species: Preble‘s meadow jumping mouse;
Decision: 12-month review finding/proposed delisting;
Service actions to address decision: Withdrew proposed delisting and
published an amended proposed listing rule on November 7, 2007 (72 Fed.
Reg. 62992).
Species: Preble‘s meadow jumping mouse;
Decision: Final critical habitat;
Service actions to address decision: Revisit critical habitat when
listing is final and funds are available.
Species: Canada lynx;
Decision: Final critical habitat;
Service actions to address decision: Published a proposed rule
describing revised critical habitat on February 28, 2008 (73 Fed. Reg.
10860).
Species: Southwestern willow flycatcher;
Decision: Final critical habitat;
Service actions to address decision: No action. The Service did not
recommend revision of the critical habitat because the reduced range
was scientifically supportable.
Source: GAO.
[End of table]
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.
Figure:
[See PDF for image]
This figure is a flow chart:
Criterion 1: Other Interior official directly influenced decision;
Criterion 2: Science compromised;
Criterion 3: Significant change and potential negative effect on
species;
Yield: Eight decisions (decisions potentially in need of revision).
Source: GAO.
[End of figure]
* While Ms. MacDonald was the primary reviewer of most ESA decisions,
other Interior officials were also involved.
Example: Miami blue butterfly:
Figure: Photograph of Miami blue butterfly.
Source: H.L. Savato.
[End of figure]
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.
* Following criterion 2, the Service excluded policy decisions that
limited the application of science.
Figure:
[See PDF for image]
This figure is a flow chart:
Criterion 1: Ms. MacDonald directly influenced decision;
Criterion 2: Informal policies limiting use of science;
Criterion 3: Significant change and potential negative effect on
species;
Yield: Eight decisions (decisions potentially in need of revision).
Source: GAO.
[End of figure]
* 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.
- 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.
Example: bull trout:
Figure: Photograph of bull trout.
Source: U.S. Fish and Wildlife Service.
[End of figure]
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.
Following criterion 3,the Service excluded decisions that were changed
but not significantly or to the point of negative impact on the
species.
Figure:
[See PDF for image]
This figure is a flow chart:
Criterion 1: Ms. MacDonald directly influenced decision;
Criterion 2: Science compromised;
Criterion 3: Change without negative effect on species;
Yield: Eight decisions (decisions potentially in need of revision). .
Source: GAO.
[End of figure]
Example: Comal Springs invertebrates:
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.
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.
Example: California tiger salamander.
Under Ms. MacDonald, the Central California tiger salamander population
was combined with two other populations of tiger salamanders, against
the recommendation of Service staff. As a result, the Service changed
the two populations‘ listing from endangered to threatened. This
decision was challenged and overturned by a federal court. [Center for
Biological Diversity v. U.S. Fish and Wildlife Service, Civ. No. 04-
4324, slip. op. at 9 (N.D. Cal. August 19, 2005)]
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.
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.
Figure: Photograph of Spikedace and loach minnow.
Source: U.S. Fish and Wildlife Service.
[End of figure]
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.
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.
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.
Example: Sacramento splittail.
Figure: Photograph of Sacramento splittail.
Source: Tina Swanson.
[End of figure]
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.
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.
[End of briefing slides section]
Footnotes:
[1] The ESA requires that the law be implemented by the Secretaries of
the Interior and Commerce, who have delegated implementation authority
to the U.S. Fish and Wildlife Service and the National Oceanic and
Atmospheric Administration's Fisheries Service, (formerly the National
Marine Fisheries Service) respectively. The U.S. Fish and Wildlife
Service is responsible for implementing the ESA for freshwater and
terrestrial species. The National Oceanic and Atmospheric
Administration's Fisheries Service is responsible for implementing the
ESA for most marine species and anadromous fishes (which spend portions
of their life cycle in both fresh and salt water).
[2] Department of the Interior, Office of Inspector General,
Investigative Report on Allegations against Julie MacDonald, Deputy
Assistant Secretary, Fish, Wildlife and Parks (Washington, D.C.: Mar.
23, 2007). The Inspector General concluded that Ms. MacDonald had
violated federal rules by sending internal agency documents to industry
lobbyists. The Office of Inspector General issued a second
investigative report on Ms. MacDonald's involvement in an ESA decision
about the Sacramento splittail fish on November 27, 2007. This
investigation concluded that Ms. MacDonald stood to gain financially
from the decision and she should therefore have recused herself.
Additionally, as of March 31, 2008, the Office of Inspector General was
conducting a third investigation, concerning potential inappropriate
political interference in ESA decisions for 20 species.
[3] Endangered Species Act Implementation: Science or Politics?
Oversight Hearing before the House Committee on Natural Resources,
110th Cong. (2007).
[4] 16 U.S.C. §§ 1532(6), (20); 1533(a).
[5] 16 U.S.C. § 1533(a)(1).
[6] The Service's candidate conservation program maintains a list of
species for which listing is warranted but precluded by other higher-
priority actions. According to Service officials, the candidate
conservation program can support actions to reduce or remove threats so
that listing may become unnecessary. Candidate species may be
identified through assessments initiated by the Service or through a 12-
month finding on a petition to list a species when the finding
concludes that listing is warranted but precluded by higher-priority
listing actions. Candidate assessments use the same "best available
science" standard as used for a 12-month finding on a petition to list
a species.
[7] 16 U.S.C. § 1533(b)(3)(A).
[8] 50 C.F.R. § 424.14(b).
[9] Seventy-two percent of the 90-day petition findings published in
the Federal Register from calendar years 2005 through 2007 were on
petitions to list species as threatened or endangered. According to
federal regulations (50 C.F.R. § 424.14), petitioned actions may
include (1) petitions to list, delist, or reclassify species
(reclassification would involve "up-listing" a species from threatened
to endangered or "down-listing" a species from endangered to
threatened); (2) petitions to revise critical habitat; and (3)
petitions to designate critical habitat or adopt special rules. The
remaining 28 percent of the 90-day petition findings published in the
Federal Register from calendar years 2005 through 2007 were on
petitions to delist species, reclassify species, or revise critical
habitat designations.
[10] 16 U.S.C. §§ 1533(f)(1)-(5). Recovery plans are not required if
the Service determines that a plan will not promote the species'
conservation.
[11] 16 U.S.C § 1533(f)(1)(B). As originally enacted in 1973, the ESA
did not contain a requirement for recovery plans, see Pub. L. No. 93-
305, 87 Stat. 884 (1973). A general provision on recovery plans was
first added in 1978 by Pub. L. No. 95-632, § 11(5), 92 Stat. 3751, 3766
(1978). The general provision was amended in 1982 by Pub. L. No. 97-
304, §§ 2(a)(4)(B)-(D), 96 Stat. 1411, 1415 (1982). The detailed
provisions that exist today on recovery plans were largely added in
1988 by Pub. L. No. 100-478, title I, § 1003, 102 Stat. 2306-7 (1988).
[12] See 16 U.S.C. § 1533(a)(1); 50 C.F.R. § 424.11(c).
[13] We excluded 13 petition findings from our 2005-2007 sample for the
following reasons: 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.
[14] Under the ESA the term "species" includes any distinct population
segment of any species of vertebrate fish or wildlife which interbreeds
when mature. 16 U.S.C. § 1532(16).
[15] Initially, the regional offices identified a total of 11 decisions
for potential revision. One of these, on the Mexican garter snake, was
subsequently withdrawn after further discussion determined that the
decision was made internally by Service headquarters. Two additional
decisions, regarding the bull trout and the marbled murrelet, were
withdrawn by the region after it was determined that neither decision
involved the inappropriate use of science but rather involved policy
interpretations.
[16] 16 U.S.C. § 1533(b)(3)(A).
[17] In making a 90-day petition finding, the Service must consider
whether the petition: (1) clearly indicates the administrative measure
recommended and gives scientific and common names of the species
involved; (2) contains detailed narrative justification for the
recommended measure, describing, according to available information,
past and present numbers and distribution of the species involved and
any threats faced by the species; (3) provides information on the
status of the species over all or a significant portion of its range;
and (4) is accompanied by appropriate supporting documentation in the
form of bibliographic references, reprints of pertinent publications,
copies of reports or letters from authorities, and maps. 50 C.F.R. §
424.14(b)(2).
[18] A senior Service official stated that, according to memory, no
other informal guidance documents were issued during this 18-month
period. If specific questions were asked by a particular region or
field office, however, informal guidance could have been given by
officials at Service headquarters through e-mail.
[19] See 61 Fed. Reg. 36075 (July 9, 1996). This guidance was issued
jointly by the Service and the National Oceanic and Atmospheric
Administration's Fisheries Service.
[20] ALA v. Norton, Civ. No. 00-2339, 2004 WL 3246687 at *3 (D.D.C.
June 2, 2004).
[21] A senior Service official stated that the emphasis was put on
compiling information to refute petitioners' claims because if a
petition was found to be "not substantial," the 90-day petition finding
was the agency's final action on that petition. The Service therefore
needed to adequately document in the administrative record the reasons
that the petition was denied.
[22] The biologist did not cite the May 2005 guidance when asked what
guidance was followed in evaluating the petition, so it is unlikely
that the finding was affected by the May 2005 guidance document.
[23] Processing times were calculated as number of days from the date
the Service received the petition (or the date the petition was
written, if the date of receipt was unavailable) to the date the
associated finding was published in the Federal Register.
[24] Some of the 281 species on the candidate list have been waiting
for a proposed listing decision for more than a decade.
[25] ALA v. Norton, Civ. No. 00-2339, 2004 WL 3246687 at *3 (D.D.C.
June 2, 2004) (permanent nationwide injunction based on Gunnison sage
grouse). See also ALA v. Norton, 242 F. Supp. 2d 1, 18 (2003)
(declaring this aspect of the guidance to be invalid). The adequacy of
the guidance was also challenged in a 2001 decision, Center for
Biological Diversity v. Gale Norton, 254 F.3d 833, 838-40 (2001)
(holding that provisions of the guidance related to candidate species
violated the ESA).
[26] Center for Biological Diversity v. Morganweck, 351 F. Supp. 2d
1137, 1143 (D. Colo. 2004).
[27] Colorado River Cutthroat Trout, et al. v. Kempthorne, 448 F. Supp.
2d 170 (2006); Western Watersheds Project v. Norton, Civ. No. 06-127,
2007 WL 2827375 (D. Idaho Sept. 6, 2007) (pygmy rabbit); Center for
Biological Diversity v. Kempthorne, Civ. No. 07-0038, 2008 WL 659822
(D. Ariz. March 6, 2008) (Sonoran desert population of bald eagle).
[28] Defenders of Wildlife v. Kempthorne, Civ. No. 05-99 (D. Mont.
Sept. 29, 2006) (wolverine); Center for Biological Diversity v.
Kempthorne, Civ. No. 06-04186, 2007 WL 163244 (N.D. Cal. Jan. 19, 2007)
(Siskiyou Mountains salamander and Scott Bar salamander); Western
Watersheds Project v. Norton, Civ. No. 06-127, 2007 WL 2827375 (D.
Idaho Sept. 6, 2007) (pygmy rabbit).
[29] Defenders of Wildlife v. Kempthorne, Civ. No. 05-99, slip op. at
20 (D. Mont. Sept. 29, 2006).
[30] Center for Biological Diversity v. Kempthorne, Civ. No. 07-0038,
2008 WL 659822 (D. Ariz. Mar. 6, 2008).
[31] Western Watersheds Project v. Hall, Civ. No. 06-0073, 2007 WL
2790404 (D. Idaho Sept. 24, 2007).
[32] 71 Fed. Reg. 75924 (Dec. 19, 2006).
[33] See Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121 (D.D.C.
2001); Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C. 1995). In
Defenders of Wildlife, the court remanded the recovery plan to the
Service to incorporate delisting criteria or to provide an adequate
explanation of why delisting criteria could not practicably be
incorporated. In Fund for Animals, the court remanded the plan back to
the Service for revision of the recovery criteria.
[34] GAO, Endangered Species: Time and Costs Required to Recover
Species Are Largely Unknown, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-06-463R] (Washington D.C.: Apr. 6, 2006). The random
sample of 107 recovery plans included 99 recovery plans (covering 192
species) for which the Service has either primary responsibility or
shared responsibility with the National Oceanic and Atmospheric
Administration's Fisheries Service, and 8 recovery plans (covering 9
species) for which the National Oceanic and Atmospheric
Administration's Fisheries Service has primary responsibility.
[35] We defined information in Service files as information not
included or cited in the petition but used regularly over the course of
the lead biologists' work. We defined information external to Service
files as information not included or cited in the petition but
solicited from other entities or obtained through exhaustive literature
searches during the process of reviewing the petition.
[End of section]
GAO's Mission:
The Government Accountability Office, the audit, evaluation and
investigative arm of Congress, exists to support Congress in meeting
its constitutional responsibilities and to help improve the performance
and accountability of the federal government for the American people.
GAO examines the use of public funds; evaluates federal programs and
policies; and provides analyses, recommendations, and other assistance
to help Congress make informed oversight, policy, and funding
decisions. GAO's commitment to good government is reflected in its core
values of accountability, integrity, and reliability.
Obtaining Copies of GAO Reports and Testimony:
The fastest and easiest way to obtain copies of GAO documents at no
cost is through GAO's Web site [hyperlink, http://www.gao.gov]. Each
weekday, GAO posts newly released reports, testimony, and
correspondence on its Web site. To have GAO e-mail you a list of newly
posted products every afternoon, go to [hyperlink, http://www.gao.gov]
and select "E-mail Updates."
Order by Mail or Phone:
The first copy of each printed report is free. Additional copies are $2
each. A check or money order should be made out to the Superintendent
of Documents. GAO also accepts VISA and Mastercard. Orders for 100 or
more copies mailed to a single address are discounted 25 percent.
Orders should be sent to:
U.S. Government Accountability Office:
441 G Street NW, Room LM:
Washington, D.C. 20548:
To order by Phone:
Voice: (202) 512-6000:
TDD: (202) 512-2537:
Fax: (202) 512-6061:
To Report Fraud, Waste, and Abuse in Federal Programs:
Contact:
Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]:
E-mail: fraudnet@gao.gov:
Automated answering system: (800) 424-5454 or (202) 512-7470:
Congressional Relations:
Ralph Dawn, Managing Director, dawnr@gao.gov:
(202) 512-4400:
U.S. Government Accountability Office:
441 G Street NW, Room 7125:
Washington, D.C. 20548:
Public Affairs:
Chuck Young, Managing Director, youngc1@gao.gov:
(202) 512-4800:
U.S. Government Accountability Office:
441 G Street NW, Room 7149:
Washington, D.C. 20548: