Interior Department Overrules Scientists on Marbled Murrelet Designation

Published Apr 11, 2004

Update: In June 2009, the Fish and Wildlife Service announced the marbled murrelet will remain listed as threatened under the Endangered Species Act. This decision replaces the conclusions of a 2004 report that misrepresented the findings of FWS biologists to try to justify removing protections for the vulnerable seabird.

The Department of Interior tampered with and ultimately reversed the findings of government biologists regarding the threatened status of the marbled murrelet (Brachyramphus marmoratus), a small seabird native to the Pacific Northwest.1 Internal documents show that pressure from the timber industry resulted in a 2004 decision which threatens federal protections for the imperiled murrelet and paves the way for increased logging in old-growth forests.

The U.S. Fish and Wildlife Service (FWS) listed the marbled murrelet population of California, Oregon and Washington as threatened under the Endangered Species Act (ESA) in 1992. Although still numerous in Canada and Alaska, the dove-sized birds were disappearing rapidly from their southern range as human development and logging encroached upon their coastal forest habitat. According to the San Francisco Chronicle, the murrelet listing was especially unpopular with the Pacific Lumber Co., whose efforts to log northern California old-growth redwood forests would be blocked if the bird were protected under the ESA.2

An estimated 270,000 marbled murrelets live and breed in Alaska and another 54,000 to 92,000 in British Columbia.3 In contrast, only between 15,000 and 35,000 marbled murrelets remain in the three northwestern states.4 Even with ESA protection, this population has continued to shrink and fragment over the last ten years. The Audubon Society estimates a decline of between 4 and 7 percent per year.5

The FWS's Pacific Regional office initiated a five-year review of the threatened marbled murrelet's status in 2003 as a result of litigation from the timber industry.6 After reviewing the science and legal protections for the bird, the Pacific office determined that the marbled murrelet of the Pacific Northwest was a valid Distinct Population Segment (DPS). DPS status ensures that, although the bird is plentiful in Alaska and Canada, the Pacific Northwest population still qualifies for protections under the ESA. The regional office's final report, submitted to FWS headquarters, recommended no change in the listing classification for the bird.7

Internal documents from the FWS and the Department of the Interior (DOI) obtained by Earthjustice through the Freedom of Information Act (FOIA)8 reveal that high-level DOI officials intended to manipulate the review before it was even officially announced. Notes from a November 2002 meeting indicate that administration officials decided early on that the timber industry would "get what they want." The meeting notes read, "We're willing to concede the on [sic] as many issues as we can, in order to accommodate their desire for increased timber harvest."9

Former Deputy Assistant Secretary of Fish, Wildlife and Parks Julie MacDonald played a key role in overturning the Regional Office's findings and personally critiqued the underlying scientific report prepared by FWS biologists and their contractors. MacDonald resigned from her high-ranking position at the Interior Department in April 200710 after a report by the DOI Office of the Inspector General implicated her in systematically undermining the science in multiple Endangered Species Act decisions through direct edits and authoritative decrees.11

The FOIA documents show that MacDonald, an engineer by training, imposed her own inexpert interpretations of the data upon the review process.12 MacDonald argued that the biological evidence amassed by the FWS scientists was flawed13 and characterized the entire report as a "pattern of mistakes."14 She furthermore insisted on including or emphasizing, in the review process, several studies that had been discounted by the reviewers.15

Despite these attacks on the underlying science, the Pacific regional office maintained its stance that the 3-state marbled murrelet population is a DPS. Just days before the final findings of the five-year review were to be released, the regional office submitted a press release to DOI officials in Washington for approval. The draft restated the regional biologists' conclusion that no change should be made in the listing classification for marbled murrelet populations in California, Oregon, and Washington, as "the loss of these populations would likely reduce the evolutionary potential and long-term viability of the species' entire range from Alaska to Canada."16

That statement was never released to the public. Instead, six days later on September 1, 2004, FWS headquarters replaced this press release with their own version, which reversed the findings of the regional biologists and declared the marbled murrelets in these three states did not qualify as a DPS.17 FWS headquarters claimed marbled murrelet populations, and their legal protections, were contiguous across the Canadian border and hence the three-state population did not satisfy the requirement of "discreteness" necessary for DPS status.18

The administration announced plans to begin the process of delisting the bird from the ESA in October 2005,19 even though scientists and environmental advocates argued that delisting goes against the best available scientific information about this vulnerable bird population. As Kristen Boyles of Earthjustice explained, by grouping together all populations the Interior Department is "ignoring biology and playing games with the legal standard to say this is no longer a population segment we can list."20

An official proposal to delist the species never appeared, but in 2006 FWS proposed to reduce the acreage of marbled murrelet critical habitat protected under the ESA by nearly 95% as part of a "settlement" reached with the American Forest Resource Council and the Western Council of Industrial Workers.21 The agency decided to withdraw this proposal in March 2008 due to a pending plan by the Bureau of Land Management to alter coastal forest management, but given the strong economic incentives to increase logging in the region it seems likely the question of critical habitat will soon rise again.22

To see the current status of protection for the marbled murrelet, visit its page on the FWS website.

1. U.S. Fish and Wildlife Service. Regulatory profile: Marbled Murrelet.
2. Jane Kay, "Suit Could Follow Any Delisting of Marbled Murrelet," San Francisco Chronicle, 26 October 2005, accessed 27 February 2008.
3. U.S. Geological Survey. 2006. Status Review of the Marbled Murrelet (Brachyramphus marmoratus) in Alaska and British Columbia. Report 2006-1387.
4. U.S. Fish and Wildlife Service. Marbled Murrelet 5-Year Review Process: Overview [Final], 31 August 2004, p. 7.
5. See the web entry for the Marbled Murrelet on the Audubon Society's website. Accessed 2 February 2008.
6. Evaluation Report for the 5-Year Status Review of the Marbled Murrelet in Washington, Oregon and California. Prepared for the U.S. Fish and Wildlife Service Region 1. March 2004.
7. U.S. Fish and Wildlife Service. Marbled Murrelet 5-Year Review [Draft]. Dated April 21, 2004. Obtained by Earthjustice FOIA request, provided to UCS 24 July 2008.
8. Earthjustice. Selected FOIA documents regarding Julie MacDonald and the Marbled Murrelet. Accessed 27 February 2008.
9. "Mary Klee’s Notes of 2:00 Conference Call in Ann Klee’s Office." 14 November 2002. Earthjustice FOIA documents, p. 1. Note: the "plaintiffs" referred to in the notes are the American Forestry Resource Council, a lobbying group representing the timber industry.
10. Barringer, Felicity. "Interior official steps down after report of rules violation." The New York Times. May 2, 2007. Accessed 27 March 2008.
11. Department of the Interior, Office of the Inspector General. Report of investigation: Julie MacDonald, deputy assistance secretary – Fish, Wildlife, and Parks. March 2007. Accessed on 7 March 2008.
12. Email from Julie MacDonald to Theresa Rabot (FWS).  19 March 2004.  Earthjustice FOIA documents, p. 19. MacDonald writes, "I am most concerned about our apparent misrepresentation of these birds in California in the listing document…it appears that the murrelet, while present, only showed up in any real numbers periodically."
13. Email from Julie MacDonald to Theresa Rabot (FWS).  28 April 2004.  Earthjustice FOIA documents, p. 24.  MacDonald writes, "We have some very serious reservations about the product we received from EDAW [the authors of the scientific review] as it does not meet the requirements of the rfp."
14. Email from Barry Mulder (FWS).  22 March 2004.  Earthjustice FOIA documents, p. 22.  Mulder writes, "She commented that her review indicates continued use/overuse of "bad" data, misuse of these types of data in calculating trends (bias), misstatements about what the authors actually stated or intended – i.e. a pattern of mistakes (her words) both in the original listing, subsequent reviews, and in EDAW’s report."
15. Email exchange between Gary Frazer (FWS) and Julie MacDonald.  7 April 2003.  Earthjustice FOIA documents, p. 9-11; Email exchange between Barry Mulder and Julie MacDonald.  4 August 2004.  Earthjustice FOIA documents, p. 28-29.
16. U.S. Fish and Wildlife Service, Pacific Regional Office. Five-year review of Marbled Murrelet Completed [Draft Press Release]. Sent for review 26 August 2004. Earthjustice FOIA documents, p. 32-33.
17. U.S. Fish and Wildlife Service. Five-year review of Marbled Murrelet Completed [Final]. 1 September 2004. Accessed on 7 March 2008.
18. U.S. Fish and Wildlife Service. Marbled Murrelet 5-Year Review Process: Overview [Final]. 31 August 2004. p. 14-17.
19. Kay, 2005.
20. Jeff Barnard, "Bush Administration Moves to Change Protection for Marbled Murrelet," Corvallis Gazette-Times, 2 September 2004, accessed 27 February 2008.
21. Department of the Interior, "Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Marbled Murrelet; Proposed Rule," Federal Register Vol. 71, No. 176, September 12, 2006, accessed December 7, 2006. Accessed 27 February 2008.
22. Milstein, Michael. "Marbled Murrelet Will Keep Territory." The Oregonian. 6 March 2008. Accessed 6 March 2008.