U.S. Fish and Wildlife Service: Endangered Species Act Decision  
Making (21-MAY-08, GAO-08-688T).				 
                                                                 
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.	 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-08-688T					        
    ACCNO:   A82159						        
  TITLE:     U.S. Fish and Wildlife Service: Endangered Species Act   
Decision Making 						 
     DATE:   05/21/2008 
  SUBJECT:   Data collection					 
	     Data integrity					 
	     Data recovery					 
	     Decision making					 
	     Eligibility criteria				 
	     Endangered species 				 
	     Environmental impact statements			 
	     Environmental legislation				 
	     Environmental monitoring				 
	     Environmental policies				 
	     Environmental protection				 
	     Mission critical information			 
	     Policy evaluation					 
	     Science policy					 
	     Species						 
	     Wildlife conservation				 

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GAO-08-688T

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.

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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 Interiorï¿½s (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 Serviceï¿½s review of decisions that may have 
been inappropriately influenced; (2) to what extent the Serviceï¿½s 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 Serviceï¿½s 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 Serviceï¿½s 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. GAOï¿½s 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 ESAï¿½s 
listing/delisting threat factors to the maximum extent practicable when 
developing recovery criteria. In 2006, GAO reported that the Serviceï¿½s 
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 GAOï¿½s recommendation, the 
Service issued a directive requiring all new and revised recovery plans 
to include criteria addressing each of the ESAï¿½s 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 
[email protected]. 

[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 [email protected]. 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 
Interiorï¿½s (Interior) Office of Inspector General to begin 
investigating Deputy Assistant Secretary Julie MacDonaldï¿½s activities 
and her involvement with Endangered Species Act (ESA) decisions. 

On March 23, 2007, Interiorï¿½s 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, Interiorï¿½s Deputy Secretary, Lynn Scarlett, directed 
Interiorï¿½s 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 Serviceï¿½s selection process for determining which ESA decisions 
were potentially inappropriately influenced by former Deputy Assistant 
Secretary MacDonald and the status of the Serviceï¿½s review of these 
decisions. 

* The types of decisions, if any, excluded from the Serviceï¿½s 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 Serviceï¿½s review. 

* Reviewed Service policies and procedures for making ESA decisions and 
reviewed other species-specific documentation. 

Results in Brief: 

Applying three criteria, the Serviceï¿½s 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 Serviceï¿½s 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 ï¿½takingï¿½ 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 
speciesï¿½ 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 ï¿½incidental 
takeï¿½of 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 Interiorï¿½s 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 
Interiorï¿½s 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, Interiorï¿½s 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 Serviceï¿½s ESA decisions. 

Recent Interior Inspector General investigations: 

* On November 27, 2007, Interiorï¿½s Inspector General reported on an 
investigation of allegations that Ms. MacDonaldï¿½s involvement resulted 
in the withdrawal of the Serviceï¿½s 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 Serviceï¿½s 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 Scarlettï¿½s 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. MacDonaldï¿½s 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 Serviceï¿½s 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 1ï¿½bull trout 
and marbled murreletï¿½after 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 Serviceï¿½s 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 ï¿½not 
substantialï¿½; 
Date published: 11-9-04. 

Region: 6; 
Species: Prebleï¿½s 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: Prebleï¿½s 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: Prebleï¿½s 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: Prebleï¿½s 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 Serviceï¿½s selection process: 

Certain types of decisions were excluded from the Serviceï¿½s 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 speciesï¿½ 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 ï¿½occupied by 
the species at the time it is listedï¿½ 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 biologistsï¿½ conclusions about the speciesï¿½ 
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. MacDonaldï¿½s influence, subterranean waters were removed from 
the animalsï¿½ 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 
speciesï¿½ use of subterranean waters. 

Additionally, we identified six other categories of decisions that, in 
some or all cases, were excluded from the Serviceï¿½s selection process. 

1. In some cases, decisions that already had been addressed by the 
courts were excluded from the Serviceï¿½s 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 populationsï¿½ 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 
Serviceï¿½s 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 speciesï¿½ 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 Serviceï¿½s selection 
process where revising the decision was determined to be an inefficient 
use of resources because it would not significantly alter the speciesï¿½ 
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 fishesï¿½ 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 fishesï¿½ recovery and therefore 
felt that revisiting the decision would not be an efficient use of 
resources. 

4. Decisions were excluded from the Serviceï¿½s 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 Serviceï¿½s 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 approvedï¿½primarily with regard to critical habitat 
designationsï¿½and wrote their decisions accordingly. 

6. Decisions were excluded from the Serviceï¿½s 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 speciesï¿½ 
threatened status, Ms. MacDonald raised concerns about a statistical 
approach the Service had applied in analyzing the speciesï¿½ 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 Serviceï¿½s selection process led it to identify 8 
decisionsï¿½less than 4 percent of more than 200 decisions reviewedï¿½7 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. ï¿½ï¿½ 1532(6), (20); 1533(a). 

[5] 16 U.S.C. ï¿½ 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. ï¿½ 1533(b)(3)(A). 

[8] 50 C.F.R. ï¿½ 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. ï¿½ 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. ï¿½ï¿½ 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 ï¿½ 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, ï¿½ 11(5), 92 Stat. 3751, 3766 
(1978). The general provision was amended in 1982 by Pub. L. No. 97- 
304, ï¿½ï¿½ 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, ï¿½ 1003, 102 Stat. 2306-7 (1988). 

[12] See 16 U.S.C. ï¿½ 1533(a)(1); 50 C.F.R. ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 
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] 

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