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Fish and Wildlife Service Recommendations

Political interference in science has penetrated deeply into the culture and practices at the Department of the Interior and U.S. Fish and Wildlife Service. Endangered Species Act (ESA) decisions in particular have been a flash point for politics and science even though the statute clearly mandates the primacy of science in many ESA decisions. The results of a survey of Fish and Wildlife Service scientists showed high numbers of scientists knew of cases of political interference, felt that agency decision making was not sufficiently protective of species and habitats, feared retaliation, and suffered from poor morale. 

President Obama and Secretary Salazar have committed to a new era of transparency and accountability. On Jan 22, 2009, the Secretary pledged to his employees "to lead the Interior Department with openness in decision-making, high ethical standards, and with respect for scientific integrity."  He went on to say, "I want the public to be proud of the department's work, and I want those who work for the department to be proud of their service."  In support of these priorities, the Scientific Integrity Program at the Union of Concerned Scientists offers the following to safeguard science and scientists from political interference:

 

Increasing Transparency at the FWS

The reputation of the Fish and Wildlife Service suffered under the Bush Administration, as programs such as the Endangered Species Act were crippled by political interference and apathy. These attitudes and practices were in great part enabled by the lack of transparency in ESA decision making. After facing years of attempts to censor, alter, and suppress their work, FWS scientists must receive a clear message that conditions have changed.

  • Issue an openness memo. Director Hamilton should lead the FWS into a new period of increased openness by using his own practice as an example. He should issue memo on transparency which includes the commitments to: make the director's visitor logs available to the public, consistent with President Obama’s recent decision to do the same;  set ambitious transparency standards for decision-making processes; set standards for disclosing conflicts of interest; and lay out a set of general openness principles for the agency to follow. As a model, former EPA Administrator Ruckelshaus issued a memo that his agency would operate “in a fishbowl”  and current EPA Administrator Lisa Jackson has echoed these principles in her own memorandum.
  • Institute an agency media policy. A 2008 UCS analysis found that the FWS lacked a central, official media policy and that the degree of freedom and agency support that FWS scientists felt when speaking to the media varied widely from office to office. As a result of this report, we have begun work with the FWS to implement many of our model media policy recommendations, which include the right for FWS scientists to freely express their personal views provided they make it clear they are not speaking on behalf of the agency, and a right to review, amend, and comment publicly on the final version of any document that significantly relies on their research. A strong, agency-wide media policy that clearly addresses the issues of scientific free speech and review will greatly improve not only the transparency of the Service, but also employee morale.
  • Keep public records of meetings. The Service should institute a transparency policy for official meetings with outside entities. The Service should maintain a public database containing a complete record of all meetings with outside interests, including for-profit and not-for-profit organizations, other government agencies, and individuals. The subject of the meeting, a summary of its contents, and any provided materials should also be available to the public. This policy would provide some measure of protection against the type of political interference that occurred in the case of the marbled murrelet, when private timber interests and other federal departments successfully pressured the FWS into issuing a 5 year review it has admitted is "flawed." Because of this review, the FWS has been forced to waste valuable resources fielding numerous petition requests to delist the murrelet.
  • Improve information sharing with the public. The Service can improve its reputation with the public by modernizing its website to make its public information more easily accessible, and with timely and complete responses to records requests. One of the hallmarks of the political interference of the last decade was a near-halt to sharing of information with the public. The Service's website should be searchable, shareable, and usable. The website suffers from the fragmentation of responsibility inherent to an agency comprised of so many semi-autonomous regional and field offices, but uniform standards for sharing and formatting public data should be specified to increase user access and understanding. Clear records of decision making, including comprehensive rulemaking dockets, should be available online. These should include all relevant scientific studies used in the decision making process, all interagency communications regarding rules under review, and complete and peer-reviewed drafts of FWS documents prepared by scientific or technical staff before they are subjected to White House or interagency review.

    The Director should also issue a memo that publicly echoes President Obama's Jan 21, 2009 memorandum on transparency and the Freedom of Information Act (FOIA) that asserts that the default position for the department is one of openness. Documents and information should be shared routinely with the public, not just via FOIA requests. FOIA officers should ensure that any legal withholding is narrowly and clearly defined.


Safeguard the Endangered Species Act from Political Interference

One of the great strengths of the ESA is its foundation in robust scientific principles and its reliance on the best available science. Objective scientific information and methods should be used in listing species, the habitat needs of endangered species should be "scientifically well-informed" and the Endangered Species Act standard of "best available science" must rely on "impartial scientific experts."

Unfortunately, when scientific knowledge has appeared to be in conflict with its political goals, the Bush administration manipulated the process through which science entered into ESA decisions. This was accomplished by placing people in official posts who were professionally unqualified, had clear conflicts of interest, or were fundamentally hostile to the conservation mission of their office; by censoring and suppressing reports by the government's own scientists; and by omitting or distorting scientific data. The failure to insulate science-based decision making from political considerations frequently lands FWS in court, on the losing side of litigation.

This manipulation and suppression of science was pervasive throughout the execution of the Act, from the first steps of the listing process to the creation of recovery plans of critically endangered species. It will take an equally broad initiative to restore integrity to the Endangered Species Program and gird it against future assaults. In general, decision making must be transparent, scientists must be protected from political pressures, and clear policies must be implemented to guide the public and the Service in making consistent, protective findings for imperiled species.

  • Continue to identify and correct ESA cases tainted by political interference. In 2007, the FWS identified 7 species decisions for review that had been tainted by the political interference of Deputy Assistant Secretary of the Interior Julie MacDonald. The GAO testified in 2008 that the FWS used extremely narrow criteria in its process to decide which species merited review, excluding cases where other persons were implicated in the political interference, where policy decisions limited the application of science, and where decisions were changed but not significantly or to the point of having a negative impact on species. 

    UCS has compiled the allegations of political interference by watchdog and environmental groups, and estimates nearly 80 species decisions may be tainted. Some of these have been investigated due to Congressional inquiries, but these have focused almost exclusively on MacDonald. The Inspector General of the Department of the Interior concluded that 14 out of the 20 decisions it reviewed were jeopardized by MacDonald, and named several other career staff and political appointees linked to these and other cases of political interference.  Several of these decisions have since been queued for review in the wake of court settlements.

    The FWS must initiate another review of species decisions manipulated by the actions of career employees or political appointees, or tainted by the implementation of policies which reduce the input of science into the decision making process. Without clearing the record, FWS is left in the position of defending illegal or flawed decisions, and the conservation of endangered species suffers.
  • Address the enormous policy void. While it is imperative that we continue to uncover instances where endangered species science has been manipulated, edited, overruled, or ignored in its entirety, it is equally important to determine what policies exist or existed in the DOI and Department of Commerce to allow such interference to take place. The IG recently concluded that many of the abuses that occurred were due to political appointees exploiting what he felt was an "enormous policy void" left intentionally by numerous Republican and Democratic administrations.  In order to restore scientific integrity to the implementation of the ESA, every stage of protecting threatened and endangered species will have to be proactively revisited in order to implement policies encouraging transparency, accountability, and a decision-making process based on robust science.

    More specifically, the FWS must issue formal guidance and regulations clarifying the scientifically-based decision making process for ESA decisions. Far too many drafts of agency guidance have served as official policy without review or public release. For example, the policy for evaluating 90-day petitions once contained a review table which specified that FWS employees were only to use information to refute the contents of a petition. The critical habitat decision making process changed on a nearly package-to-package basis under a series of informal guidance documents entitled "Lessons Learned." The IG obtained more than 14 distinct versions of this document, authored between October 2003 and January 2006. And finally, even the Strategic Plan for the endangered species program was implemented while in draft form, without being released to the public.

    The FWS needs to create clear and publicly available guidance that affirms the use of best available science, tackles some of the emerging issues facing imperiled species, and recommits to the goal of protecting threatened and endangered plants and animals. While guidance does not require a formal notice and comment period, an open process that welcomes stakeholder input would go a long way to restoring the faith of the public. The FWS should limit the use of draft documents as policy, and create a system to release draft documents to the public for review.
  • Tackle the listing backlog. The Bush administration virtually shut down the listing process. During its eight years, the FWS listed only 52 species, a rate of seven species per year. In contrast, the Clinton administration listed 522 species (65 species per year), and the first Bush administration listed 231 species (58 species per year). In addition, the candidate list increased from 231 to 281 species. We applaud the Service's recent commitment to addressing the backlog of species on the Candidate Conservation list, and encourage the Service to ensure that sufficient funds are allocated to protect these at-risk species. We look forward to the same enthusiasm for processing citizen petitions.
  • Take clear positions on cross cutting issues
    • Significant portion of range - In 2007, the Solicitor for the Department of the Interior issued a memorandum reinterpreting the phrase "a significant portion of range" and effectively narrowed the definition of an endangered species. This radical shift away from over thirty years of endangered species protections has recently been reaffirmed by Secretary Salazar, as the April 2, 2009 final delisting of the Northern Rocky Mountain population of gray wolf explicitly endorses that legal opinion. By continuing to abide by this legal interpretation, the DOI will close the listing process to needy species and greatly compromise its ability to recover listed species.

      The Endangered Species Act defines an endangered species as "any species which is in danger of extinction in all or a significant portion of its range." The Solicitor's memo makes two conclusions about the "significant portion of range" (SPR) language: (1) the term "range" refers only to the current occupied habitat of a species, not its historic range and (2) the Secretary is entitled to choose the meaning of the word "significant" on a case by case basis, selectively basing it on physical range, importance of area to a species, or other factors. A recent paper analyzing the ongoing controversy surrounding the Solicitor's memo concluded that "implementation of the Solicitor's interpretation could significantly reduce the number of species that qualify for protections and ultimately result in a diminished capacity to provide for the conservation of threatened and endangered species."  President Obama, in his remarks at the Department of Interior's 160th Anniversary, said, "For more than three decades, the Endangered Species Act has successfully protected our nation's most threatened wildlife, and we should be looking for ways to improve it -- not weaken it."  This interpretation of the "significant portion of range" phrase does just the opposite, and the FWS should immediately collaborate with the Secretary to vacate this legal opinion.
    • Climate Change - According to the United Nation’s Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment, "approximately 20-30% of plant and animal species are likely to be at an increased risk of extinction if increases in global average temperature exceed 1.5-2.5° C." For species already imperiled by loss of habitat, invasive species, pollution, disease, and low population numbers, climate change could be the factor that forces them into extinction.

      The FWS has listed or is considering listing under the ESA a few species primarily threatened by climate change, including the polar bear. However, in an effort to clarify that the regulatory reach of the ESA does not include regulating point sources of carbon emissions, the DOI has repeatedly overextended itself through poorly revised regulations or unclear language. While some of these attempts have since been repealed by the current administration, further clarification is needed to ensure that threatened and endangered species will receive the protections they need so they can survive the effects of climate change.

      We are encouraged by the recent release of "Rising to the Challenge – Strategic Plan for Responding to Accelerating Climate Change." However, the FWS must quickly clarify how it intends to incorporate the scientific data on climate change threats to all decision-points in the Endangered Species Act. With clear guidance issued to employees, drafted in a stakeholder inclusive process and made publicly available, the agencies will be able to effectively and consistently make decisions addressing climate change impacts. This guidance should include consideration of emerging anticipatory adaptation techniques in natural resource management. Lawsuits involving listing of climate change affected species are already moving through the courts; meanwhile, the further loss of habitat and stress from climate change will push already perilously small populations of species to extinction unless the DOI plans effectively to fulfill the recovery promise of the ESA.
    • Cost-benefit analysis – Particularly important in the determination of critical habitat designations, cost-benefit analyses have been skewed by the use of inconsistent models, inappropriate exclusion of benefits, and over-counting of costs via the "coextensive" rationale which includes the cost of listing a species along with the full cost of a recovery effort to each species it benefits. For example, the bull trout critical habitat decision was compromised by the exclusion of benefits and the double counting of costs, and the California red-legged frog also had the benefits of conservation cut from the analysis. Environmental decisions are inherently disadvantaged by cost-benefit analysis, as many of the consequences of protection cannot be easily monetized. The FWS must find a way to ensure the scientific integrity of cost-benefit analyses, and develop a system of guidelines to ensure that analyses are consistent.


Protecting and Supporting FWS Scientists

By protecting scientists, encouraging their professional development, and increasing ethical standards and accountability in DOI, the agencies can once again recruit and retain the best and brightest scientists.

  • Implement Comprehensive Ethics Policies. The FWS should work with the DOI to develop comprehensive ethics policies that explicitly define and forbid political interference in science. Policies should include strong penalties and rigorous enforcement, clear definitions for conflicts of interest, and recognition that the manipulation of science to support or validate a policy goal is an ethical violation. Secretary Salazar recently increased the authority of ethics officers and authorized increased financial and personnel resources to the ethics program. This is a great first step in ensuring that ethics policies are rigorous and enforced. Shortly after assuming his duties, he also requested a review of departmental specific regulations in order to identify areas where ethical policies and guidance could be improved. We encourage the FWS to work closely with the DOI to ensure that these ethics policies include protections for scientists, based on the FWS's Scientific Code of Professional Conduct. We also encourage the FWS to ensure that the DOI clarifies the current role of the DOI's 10-point ethics plan implemented by former Secretary Dirk Kempthorne, particularly the current role of the Conduct Accountability Board. The FWS, and the Endangered Species Program in particular, has suffered under hostile political appointees, and the FWS should take this opportunity to ensure there are proper channels to hold future appointees accountable.
  • Commit to Whistleblower Protections. Unlike several other environmental statues, the ESA and NEPA do not have built-in whistleblower protections. While there are broader whistleblower protection laws on the books, court decisions over the years have eroded those laws and stifled Congressional intent to protect federal workers who expose waste, fraud and abuse of authority in the government. When a federal employee steps forward to protect the public from harm or to expose the waste of taxpayer dollars, that worker often is harassed, demoted, reassigned, or fired.

    The Director should commit to the principles of whistleblower protection, and vow to refrain from retaliating against whistle-blowers through reassignments, demotions, terminations or other acts of retribution, and ensure all FWS managers do the same. These whistleblower protections should cover not only waste, fraud and abuse, but also misuse of science. Federal employees should feel empowered to speak out when they feel that science has been manipulated, suppressed or distorted. Adverse personnel actions should be prohibited in retaliation for voicing a reasonable scientific or technical conclusion, disagreement, or distinction. Reporting of deviations from these policies should be explicitly encouraged.


We Can Restore the Fish and Wildlife Service

We look forward to working with Director Hamilton to restore public confidence and employee pride in the Fish and Wildlife Service. Systemic problems can be difficult to detect from the outside, and more difficult to root out. However, with a renewed commitment to transparent decision making, positive changes to secure the scientific integrity of the Endangered Species Act, clear and unambiguous ethics policies, and a working environment free of interference and intimidation from high level political appointees, the career scientists and managers of the conservation agencies will be able to identify and correct the processes that have lead to the current abysmal situation.
 

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