Government investigations found that officials responsible for protecting endangered species have violated the law, censored scientists and manipulated data to limit recovery of species facing extinction in order to protect financial interests of industries instead. Many oppose Bush’s rampant violations of our rule of law governing human rights and civil rights but say we should move on. But, the lack of any accountability has caused illegal conduct to be silently accepted and spread like a virus infecting most substantive issues, including the Endangered Species Act (ESA). We face a catastrophic loss of species globally, the inability to provide the beauty of sustained biodiversity for future generations as well as financial repercussions. Taxpayers will pay for the investigations and the “unnecessary expenditure of hundreds of thousands of dollars to re-issue decisions” as well as the expensive costs of litigation filed to compel the government to comply with the rule of law.
After an employee alleged “political influence” at the Interior Dept., which is responsible for implementing ESA, 3 internal government investigations were conducted by the Office of Inspector General (OIG). The OIG report resulted in the resignations of several high-level officials, including Julie MacDonald, former Deputy Assistant Secretary of Interior, and officials who enabled or abetted MacDonald, including a former Assistant Secretary for the US Fish and Wildlife Service (FWS), a Special Assistant and an attorney from the Office of the Solicitor. The investigation reports painted a picture of government officials who used our employees as if they worked for private corporations. This resulted in ill-gotten financial gain for MacDonald and private corporations at taxpayer expense as well as “countless land-use decisions and developments that would have never otherwise been considered.”
Government officials interfered with science and manipulated data to implement an unwritten policy to exclude as much land as possible from critical habitat designations, which is the best tool for recovery of species after being listed under ESA. Species provided critical habitat are ”twice as likely to recover as species that do not have critical habitat designated.”
A variety of methods were used to eliminate or reduce protections for endangered species:
The internal investigation determined that MacDonald had censored scientific reports and overruled scientific findings which supported measures to protect endangered species. MacDonald reshaped the scientific reports despite the fact that she has a civil engineering degree and no formal educational background in natural sciences, such as biology. The OIG report found that MacDonald “bullied, insulted, and harassed the professional staff” to “change documents and alter biological reporting” on endangered species. Even a federal district court “accused MacDonald of intimidating agency staff.” Things became so bad that some government scientists gave up and started “Julie-proofing” or anticipating “what might be approved and wrote their decisions accordingly.”
Sometimes science was overruled to prevent ESA protection due to climate change impacts now harming wildlife, like the wolverines. The Bush team did not like that it was forced to list the polar bear as threatened due to climate change. Even though Bush’s new rules to ban consideration of global warming impacts is not yet effective, the Bush team did not want another case of ESA protection based on climate change. Given that the wolverines are not as popular as the polar bears, they may succeed. Never mind that the wolverines survive in deep snow needed to birth and raise their young or that the current declining snowpack in the western mountains will only worsen in the future. In order to prevent the listing of wolverines, DC officials overruled government biologists, who had determined that the wolverines qualified for ESA protections.
If science did not support MacDonald’s personal political agenda, she directed the government scientists to disregard scientific studies or to use a minority scientific opinion when it supported delisting a species. MacDonald also established informal policies that determined the role of science in ESA decisions. For example, if a petition opposed listing a species, then staff could use external data, but if a petition supported listing a species, then staff was limited to information contained in a petition.
The internal investigation revealed another informal policy by MacDonald of changing the rules when needed to protect corporate interests. MacDonald pressured staff to undermine the case for protection of the California tiger salamander by having staff count 3 sub-species as one. The result was that the government decided to cut critical habitat in half because it would be “too costly to restrict development in those areas to protect the threatened amphibian,” a decision applauded by home builders and developers. The government excluded all critical habitat acreage in one county that the scientists determined were “essential” to the recovery of the salamander.
Officials that were not biologists or economists replaced scientific findings and conducted economic impact analysis of critical habitat to restrict critical habitat designations. One final decision reduced the number of streams designated as critical habitat for the endangered bull trout fish in such an erroneous manner that a government expert responded that he could not defend the rule in court. In one case, MacDonald’s economic impact analysis was based on “math errors” of such “magnitude” in order to exclude critical habitat from a rule published in the Federal Register. The government then had to spend $100,000 to republish a corrected rule for this one manipulation.
The OIG investigation concluded that MacDonald violated federal law by sending internal agency documents to lobbyists, lawyers, and organizations that oppose ESA regulations on private land. For example, MacDonald provided these groups an internal draft of regulations for designating critical habitat; directed subordinates to obtain internal information on species for presentation to a lobbyist; forwarded an internal e-mail to an attorney, who used the e-mail as evidence in a lawsuit, and e-mailed large internal EPA files to chevrontexaco e-mail accounts.
MacDonald disclosed documents that even the public could not obtain under a FOIA request in order to obtain approval from the industry of a policy at the drafting stage:
On Feb. 4, 2004, MacDonald sent the Pacific Legal Foundation a 147-page document on Interior’s critical habitat policies. In an e-mail exchange with one of the foundation’s lawyers, MacDonald wrote: “I will send you a copy of the draft but please do not share it with anyone else. It’s still undergoing revision, although the fundamental legal/policy approach will not change. Does that work for you?“
In one case, MacDonald provided private insider information to help the farmers who had sued the government, claiming the smelt fish no longer needed ESA protection. The government settled the lawsuit by agreeing to determine if protections were still needed. A government biologist did a scientific review, concluding the fish should remain protected. MacDonald then “fired off a blistering e-mail” to the biologist, “arguing that he and other biologists had oversimplified, according to documents unearthed during litigation.” Then, MacDonald provided her self-serving e-mail to the opposing lawyer, who gratefully appreciated her assistance by filing “a motion to reopen its case seeking to exempt the smelt from ESA protections, citing MacDonald’s e-mail as evidence the government’s science was flawed.”
In the case of our California Red-Legged frog, infamous from Mark Twain’s story of “The Celebrated Jumping Frog of Calaveras County,” our government used a closed-door settlement to reduce critical habitat in order to pave the way for development interests: The government scientists’ proposed critical habitat of 4.1 million acres was decreased to 450,288 acres. After the investigation, the FWS was forced to review this decision, and now proposes to quadruple the critical habitat to over 1.8 million acres.
The Inspector General also reported one incidence of conflict of interest: MacDonald succeeded in getting the FWS to remove from protected ESA status the threatened Sacramento Splittail fish. Remarkably, this fish “appears to be the only fish — other than those that have gone extinct — ever removed from the list of threatened and endangered species.” MacDonald “edited” agency documents to “soften” the scientists’ conclusion that the species was declining in population. Coincidentally, she stood to gain financially from this delisting as its habitat occupies her farm, thus delisting removes economic costs flowing from regulation.
MacDonald reviewed more than 200 ESA decisions, but the government initially determined that only 8 decisions or less than 4% would need to be revised due to her “political influence.” The 3rd investigation reviewed 20 more decisions, finding her influence potentially jeopardized 13. But what about all the Julie-proofed decisions where government scientists censored their work in order to get it approved by her?
Even without our current financial crisis, why should we pay twice for the same work that was screwed up by undue political influence? After an official abuses their powers and violates the law, why is resignation alone sufficient? Why not impose financial restitution so that taxpayers are not billed twice and so that we have the money to protect wildlife.