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

In our survey of 44 Service biologists who prepared 54 90-day petition  findings from 2005 through 2007, we found that additional information  collected to evaluate the petitions was generally used, as applicable, to  both support and refute information in the petitions, including during the  18-month period when the May 2005 informal guidance was being used. The Service Faces Challenges in Processing 90-day Petitions in a Timely Manner and in Responding to Court Decisions Issued since 2004

While the May 2005 informal guidance did not have a substantive effect on  the Service’s processing of 90-day petitions, the Service still faces  challenges in processing 90-day petitions in a timely manner and in  responding to court decisions issued since 2004. None of the 90-day  petition findings issued from 2005 through 2007 were issued within the  desired 90-day time frame. During this period, the median processing time  was 900 days, or about 2.5 years, with a range of 100 days to 5,545 days  (more than 15 years). According to 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. 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 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. 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. However, no comments were provided in time for them to be  included as part of this testimony. 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. Many ESA decisions must be based, at least in part, on the best  available scientific information. Objective 2: Decisions excluded from the Service’s selection process

Following criterion 3, the Service excluded decisions that were  changed but not significantly or to the point of negative impact on  the species. 1.
Why GAO Did This Study

The Department of the Interior's (Interior) U.S. Fish and Wildlife Service (Service) is generally required to use the best available scientific information when making key decisions under the Endangered Species Act (ESA). Controversy has surrounded whether former Deputy Assistant Secretary Julie MacDonald may have inappropriately influenced ESA decisions by basing decisions on political factors rather than scientific data. Interior directed the Service to review ESA decisions to determine which decisions may have been unduly influenced. ESA actions include, among others, 90-day petition findings, 12-month listing or delisting findings, and recovery planning. The Service distributed informal guidance in May 2005 on the processing of 90-day petitions. Recovery plans generally must include recovery criteria that, when met, would result in the species being delisted. GAO examined three separate issues: (1) what types of decisions, if any, were excluded from the Service's review of decisions that may have been inappropriately influenced; (2) to what extent the Service's May 2005 informal guidance affected 90-day petition findings; and (3) to what extent the Service has, before delisting species, met recovery criteria. GAO interviewed Service staff, surveyed Service biologists, and reviewed delisting rules and recovery plans. Interior did not provide comments in time for them to be included in this testimony.

What GAO Found

Several types of decisions were excluded from the Service's review of decisions that may have been inappropriately influenced. Using the following selection criteria, the Service identified eight ESA decisions for potential revision: (1) whether Ms. MacDonald influenced the decision directly, (2) was the scientific basis of the decision compromised, and (3) did the decision significantly change and result in a potentially negative impact on the species. The Service excluded (1) decisions made by Interior officials other than Ms. MacDonald, (2) policy decisions that limited the application of science, and (3) decisions that were changed but not significantly or to the point of negative impact on the species. The Service's May 2005 informal guidance had no substantive effect on 90-day petition findings. In May 2005, Service headquarters distributed a guidance document via e-mail to endangered-species biologists that could have been interpreted as instructing them to use additional information collected to evaluate a 90-day petition only to refute statements made therein. GAO's survey of 90-day petition findings issued by the Service from 2005 through 2007 found that biologists used additional information collected to evaluate petitions to both support and refute claims made in the petitions, as applicable, including during the 18-month period when the May 2005 informal guidance was being used. However, GAO found that the Service faces various other challenges in processing petitions, such as making decisions within 90 days and adjusting to recent court decisions. None of the 90-day petition findings issued from 2005 through 2007 were issued within the desired 90-day time frame. During these years, the median processing time was 900 days, or about 2.5 years, with a range of 100 days to 5,545 days (over 15 years). Additionally, the Service faces several challenges in responding to court decisions issued since 2004. For example, the Service has not yet developed new official guidance on how to process 90-day petitions after the courts invalidated a portion of the prior guidance. Finally, of the eight species delisted because of recovery from 2000 through 2007, the Service determined that recovery criteria were completely met for five species and partially met for the remaining three species because some recovery criteria were outdated or otherwise not feasible to achieve. When the delistings were first proposed, however, only two of the eight species had completely met all their respective recovery criteria. Although the ESA does not explicitly require the Service to follow recovery plans when delisting species, courts have held that the Service must address the ESA's listing/delisting threat factors to the maximum extent practicable when developing recovery criteria. In 2006, GAO reported that the Service's recovery plans generally did not contain criteria specifying when a species could be recovered and removed from the endangered species list. Earlier this year, in response to GAO's recommendation, the Service issued a directive requiring all new and revised recovery plans to include criteria addressing each of the ESA's listing/delisting threat factors.