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Litigating Political Corruption
Missoulian, December 25, 2008

White House reconsiders decision on bull trout
By Michael Jamison

KALISPELL - The Bush administration is reconsidering its defense of endangered species decisions, following a report that showed political interference in the scientific process.

This week, the government informed a federal district court judge that it might amend its position that decisions regarding bull trout habitat were scientifically defensible.

“Essentially, they're acknowledging that we were right,” said Arlene Montgomery, “but they haven't figured out exactly how to deal with it.”

Back in 2000, Montgomery's nonprofit Friends of the Wild Swan sued the federal government, asking that “critical habitat” be designated for bull trout. The fish were protected under the Endangered Species Act, she said, but no steps were being taken to ensure adequate habitat.

Federal officials responded with a critical habitat designation that environmentalists said fell far short of what the fish needed. “It eliminated 90 percent of the proposed habitat,” Montgomery said.

And so she sued again. The government quickly withdrew its habitat designation, and in 2005 issued a new decision.

“But it looked a lot like the first decision,” Montgomery said. Specifically, she said, it failed to designate “connected” habitats, which biologists said were critical to the future of the species.

In addition, she said, the decision excluded many federal lands, despite scientific objection.

The two sides made oral arguments in the case back in April 2007, and since have awaited a ruling.

While they waited, however, reports surfaced that top administration officials had meddled in endangered species decisions. In May 2007, Julie MacDonald - former deputy assistant secretary for the U.S. Fish and Wildlife Service - left her post in disgrace amid accusations she had interfered in nearly a dozen species decisions, weakening protections for endangered animals and leaking documents to industry lobbyists.

Following her departure, Congress asked the Interior Department to initiate an inspector general's review of several other USFWS decisions, including the bull trout habitat designation.

Earlier this month, the Inspector General's office issued a report concluding that MacDonald, “acting alone or in concert with other Department of the Interior officials, took actions that potentially jeopardized the ESA decisional process in 13 of the 20 investigated listing and critical habitat actions.”

The reports suggests that some of those decisions may have to be revisited under an Obama White House.

The bull trout decision was among those where political meddling was found to have undermined science. MacDonald instructed agency biologists to abandon scientific findings, the inspector general concluded, and was instrumental in making the decision to exclude federal lands from the designation, much as Montgomery's suit had claimed.

From the first, Montgomery said, “we knew that this was not science-based,” adding “that is why we went to court.”

The IG report, she said, bolstered plaintiff's position.

“Many FWS staff whom we interviewed believed MacDonald's ad hoc policy decisions resulted in a final (bull trout) rule that was not based upon the best available science and was harmful to the recovery of the species,” investigators concluded.

According to the IG report, “MacDonald's zeal to advance her agenda has caused considerable harm to the integrity of the ESA program and to the morale and reputation of the FWS, as well as potential harm to individual species. Her heavy-handedness has cast doubt on nearly every ESA decision issued during her tenure.”

In response to that report, government lawyers on Monday wrote to the judge, saying they now were considering whether to continue defending the bull trout decision. Administration officials informed the court a decision on how best to proceed in the litigation would be made within 45 days.

“The sad thing is, we've been working on this for years,” Montgomery said. “Over and over and over again. Think of all the time wasted, and the taxpayer money and staff resources, and we've accomplished nothing for the fish. That's what's really so sad.”

To read the inspector general's report on political interference in endangered species decisions, go to http://wyden.senate.gov/newsroom/interior_ig_report.pdf

Copyright © 2009 Missoulian

Photo © Paul S. Hamilton