Political meddling in endangered species decisions at the Interior Department was more widespread than previously thought, according to a new federal investigation that says policy changes to the Endangered Species Act may be needed to fully fix the problem.
Inspector General Earl Devaney revisited the political interference of Julie MacDonald, the former deputy assistant secretary for fish and wildlife and parks, in a report delivered to Congress yesterday. Lawmakers requested a review of 20 different species decisions, and Devaney found that MacDonald may have exerted undue influence in at least 13 of them.
"In the end, the cloud of MacDonald's overreaching, and the actions of those who enabled and assisted her, have caused the unnecessary expenditure of hundreds of thousands of dollars to reissue decisions and litigation costs to defend decisions that, in at least two instances, the courts found to be arbitrary and capricious," Devaney wrote.
Tainted decisions include those involving the spotted owl and the marbled murrelet and one reducing the number of streams that would be designated as critical habitat for the endangered bull trout. The rules are already the subject of lawsuits by environmentalists.
MacDonald resigned last year after a previous scathing inspector general's report found she had violated ethics rules, put pressure on employees to change their findings, edited scientific decisions on endangered species issues and passed internal agency information to outside parties.
The new report found that MacDonald had help from others at the agency, at least one of whom is still a career-level employee at Interior, who "enabled her behavior" and "aided and abetted her."
"The results of this investigation paint a picture of something akin to a secret society residing within the Interior Department that was colluding to undermine the protection of endangered wildlife and covering for one another's misdeeds," said Natural Resources Chairman Nick Rahall (D-W.Va.), who requested some of the species reviews.
A spokesman for the Interior Department said agency officials are still reviewing the more than 1,000 pages of the report, received yesterday, and would not comment until they had more time to review it. The Fish and Wildlife Service did not return calls seeking comment.
The report could reignite the debate over whether Congress and the new administration need to take action to guard against such political influence in the future and could create a road map for incoming Obama officials trying to clean up the agency's processes.
Devaney blames "an enormous policy void" in the Endangered Species Act that allowed MacDonald to exploit the law. The ESA gives the Interior secretary discretion to exclude habitat protections and make other changes but does not lay out specific policy for when those changes should be allowed.
MacDonald used that discretion to create a process with a "wholesale lack of consistency, a process based on guess-work and decisions that could not pass legal muster," according to the report. Policies changed from one listing decision to another, causing one employee to remark that each morning he would awaken and wonder, "OK, what's the agency doing today?"
New regulations or agency policy is needed to give more clarity to the process, which is now largely driven by lawsuits, according to the report. Devaney recommends that Congress be a part of the process to provide oversight and "bolster legitimacy."
At least one prominent senator is already looking at congressional action.
"While I look forward to working with a new administration with a much greater respect for the law, Congress needs to take immediate steps to make sure that Julie MacDonald's legacy can never be repeated," said Sen. Ron Wyden (D-Ore.).
Some of the officials who helped MacDonald could potentially remain at the Interior Department during the Obama administration.
MacDonald was "ably abetted" by special assistant Randal Bowman, a career employee who had the authority to help her advance the unwritten policy of working to exclude as much as possible from critical habitat designations. Bowman is still working at the agency.
And Devaney charges Thomas Graf, a career-level attorney in the solicitor's office, with a "remarkable lack of recollection that leaves one to speculate whether he was doing MacDonald's bidding or was simply a rogue actor emulating her policy style."
MacDonald also had "seemingly blind support" from a former assistant secretary for fish, wildlife and parks, Judge Craig Manson. Manson directed an error caused by MacDonald's calculations to be published in the Federal Register, even after the problem was pointed out to him.