News & Updates

Lynx habitat: Political terrain
Maine Sunday Telegram, September 9, 2007

Meetings involving a landowner and a federal official accused of bias fuel fears that politics trumped science in a ruling against designating lynx habitat in Maine.
By JOHN RICHARDSON, Staff Writer

Photo courtesy Maine Department of Inland Fisheries and Wildlife
A Canada lynx photographed in the Maine woods. Maine has the 
only breeding population of these cats in the eastern United States.
_____________
Lynx territory

The federal government proposed designating 10,000-square- mile area as critical habitat for Canada lynx, and then withdrew the proposal.
Plum Creek Timber Co.'s planned development and conservation area around Moosehead Lake lies within the original proposed habitat area.
_____________

A federal decision against designating Maine forestlands as protected habitat for Canada lynx is one of eight endangered species rulings getting a second look following the resignation of a U.S. Interior Department official accused of granting favors to industry.

The official, Julie MacDonald, a deputy assistant secretary of the interior, met with representatives of Plum Creek Timber Co. at least three times before the agency dropped the proposed habitat designation, which could affect Plum Creek's plans to develop thousands of acres in the state.

One of the meetings in question was arranged by Maine's two senators after a request for help from Gov. John Baldacci
.
The Interior Department decided to reopen the Maine case in July, two months after MacDonald resigned. All eight Endangered Species Act decisions being reviewed around the country appear to have been guided more by MacDonald's political influence than scientific considerations, according to the department.

Those involved in the meetings with MacDonald say they simply provided top agency officials with information that could shape federal policy that affects timberland owners including Plum Creek, one of the state's and the nation's largest landowners.

Conservationists say the lynx decision is a case study in how political access and influence can overshadow the science and leave a threatened species without the legal protection it deserves.

The access and influence, for better or worse, are not unusual in Washington, D.C., national experts say.

"Anyone can comment during the formal public comment period, but there's a whole lot going on behind the scenes that you may not be aware of," said Massie Ritsch of the Center for Responsive Politics, a nonpartisan group that tracks money and influence in the federal government.

In the case of the Canada lynx, a review of records and interviews by the Portland Press Herald/Maine Sunday Telegram show that:

• Representatives of Maine timberland owners, including Plum Creek, and a state wildlife official met with MacDonald and other federal officials last September in a session arranged by Sens. Olympia Snowe and Susan Collins after Baldacci sought their help.

– Lobbyists and attorneys for Plum Creek had at least two separate meetings with MacDonald between April and October of last year.

– Plum Creek, a large timberland owner that is proposing development on a portion of its Maine property, donated a combined $24,500 to the four members of Maine's congressional delegation during the past eight years, including $8,000 donated in 2006. The company also spent a total of $680,000 last year on lobbying efforts, though it's not clear how much of that was devoted to the lynx issue.

No one has said the meetings, or the donations and lobbying, broke any laws. The Interior Department said it is reviewing the lynx decision, and seven others, because it wants to restore credibility by making certain its decisions are guided by science rather than politics.

Plum Creek's Washington, D.C.-based lawyer said the meetings were all about the science and the law.

"All of our meetings were in the normal course, and none of them were to do anything other than to (present) what we think is a very strong case," said W.H. "Buzz" Fawcett, who represents the company in the lynx habitat case.

Jym St. Pierre, Maine director of RESTORE: The North Woods, an environmental advocacy group, and critic of Plum Creek's development plans, believes Plum Creek circumvented the public process.

"On one level, it's not surprising that a major corporation would hire hotshot lobbyists and try to get meetings with friendly officials in the department," St. Pierre said. "On the other hand, there was a public process going on that was supposed to be for the agency to take in comments from everybody and anybody and make its decisions based upon objective information in the record."

IMPACT ON DEVELOPMENT

At issue is the degree of federal protection for Canada lynx, a tufted-eared cat that lives throughout the commercial forests of northern Maine. Lynx are considered a threatened species nationwide, and Maine is home to the only breeding population in the eastern United States.

Areas designated as critical habitat for a federally protected species get an additional level of oversight. A property owner who wants a federal land-use permit, such as for filling a wetland as part of a development project, would have its plans reviewed, and potentially restricted, based on habitat impacts.

In November 2005, the Interior Department's U.S. Fish & Wildlife Service proposed that 10,633 square miles of northern Maine – about one-third of the entire state – be designated as critical habitat
About 8,000 square miles in the western United States also were included in the proposed habitat area.

Conservation groups, which sued the agency to force the action, said the step would provide long overdue protection for the cats.

The Maine Forest Products Council, which represented about 15 landowners that owned more than 90 percent of the proposed area, said the new regulation was unnecessary. Timber companies continually create habitat for lynx by cutting trees and encouraging undergrowth, and the industry had already been working with state agencies to protect the cats, the council said. Those owners include Irving Woodlands LLC, Seven Islands Land Co. and Plum Creek.

Seattle-based Plum Creek hired Fawcett to fight the proposal. The company owns 545,000 acres of the proposed habitat area – 851 square miles – and is trying to rezone some of that land around Moosehead Lake for two resorts and 975 house lots.

The habitat designation would not automatically rule out any of that development. But, in written comments to the Fish & Wildlife Service, Plum Creek said the potential economic loss from the proposed habitat designations in Montana and Maine "will be hundreds of millions of dollars" because of restrictions on future uses of the land and reduced property values.

Maine's Inland Fisheries & Wildlife Department also opposed the federal plan. The agency argued that it was already protecting the habitat whenever new land uses are proposed.

The initial public comment period on the proposal ended April 30, 2006. A second comment period was opened from Sept. 11 to Oct. 11, 2006.

Along with filing formal comments, the Maine opponents of the lynx designation enlisted the help of the congressional delegation and went right to the top of the Fish & Wildlife Service.

Baldacci wrote a letter to the four members of the delegation on Aug. 7, 2006, saying his administration opposed the habitat proposal and that staff from the Maine Department of Inland Fisheries & Wildlife "are available to brief you on this issue and ask for your support against this proposal."

Neither of Maine's Democratic congressmen, Reps. Tom Allen and Michael Michaud, took action on the lynx issue, according to their staffs.

The state's two Republican senators, Snowe and Collins, did respond.

Snowe replied to Baldacci in a letter dated Aug. 31 saying she understood the state's position and believed the state and federal agencies "should work together to develop a comprehensive conservation strategy that relies on the best scientific data possible and is in the best interest of the people of Maine and the Canada lynx."

A week later, Snowe and Collins both signed a letter to Interior Secretary Dirk Kempthorne asking for a meeting in Snowe's office between a group from Maine and members of his senior staff, including MacDonald and Fish & Wildlife Service Director Dale Hall. The purpose, they wrote, was "to have a full discussion" on the critical habitat proposal.

Those at the Sept. 19 meeting included Patrick Strauch, executive director of the Maine Forest Products Council. Strauch outlined a logging and conservation strategy that the landowners say would protect Canada lynx habitat over time. Representatives of several individual landowners and a top official with the Maine Inland Fisheries and Wildlife Department also expressed support for the conservation strategy.

Snowe and Collins did not attend. Staff members from Snowe's and Collins' offices attended and listened in, but did not offer input from the senators.

The Interior officials mostly listened, too, said Strauch. The meeting lasted about an hour, or less, he said.

"We really just presented our case," Strauch said. "It was pretty standard procedure in my mind. We didn't want any kind of special deal. We just wanted to communicate what we were doing in Maine. We were proud of it."

Members of the congressional delegation did not take any formal position for or against the proposal, according to their staffs.

Snowe and Collins set up the meeting because the governor asked for it, not as a favor to any landowner, their spokesmen said.

"They facilitated this meeting between the stakeholders at the request of the governor," said Kevin Kelley, spokesman for Collins.

"This is the type of meeting for which you have elected representatives in Washington -- bringing together the state and federal agencies," said David Snepp, Snowe's spokesman. "This is a fairly typical type of meeting."

Typical, maybe, but not right, according to conservationists.

"Decisions like this by a federal agency are supposed to be made through an open, transparent process, where all interested parties get equal opportunities to express their views," said Andrew Hawley, staff attorney for the Defenders of Wildlife, an advocacy group that has led the legal fight to protect the lynx under the Endangered Species Act.

"The problem with these kind of one-on-one meetings is that those comments are not going to be reflected in the public record so we'll have no way of knowing what information was passed and how it influenced decision makers and what reasonable steps we could take to rebut them," he said.

POLITICAL CONTRIBUTIONS

St. Pierre of RESTORE said more questions are raised by the political contributions from Plum Creek to Maine's senators. Plum Creek's political action committee – the Plum Creek Timber Co. Good Government Fund – has given to all four members of the delegation over the past eight years that it has owned land in Maine. The contributions have come at a regular pace, usually $1,000 at a time. The largest was a $3,000 contribution to Snowe on Aug. 11, 2006.

"We support the Maine delegation because we think they do good work. We think their political agenda is aligned with good business," said Paul Davis, Plum Creek's general manager in the Northeast.

"Our contributions in Maine are in line with what we give in other states," said Kathy Budinick, Plum Creek's director of communications. The donations are not associated with particular political issues, she said.

Corporations cannot legally donate directly to candidates, but they can contribute through political action committees that pool money from employees. The company's executives and other employees contribute through payroll deductions and oversee contributions from the fund. The treasurer of the Plum Creek fund is Robert Jirsa, the company's director of corporate affairs and one of the officials who met in Washington with MacDonald, according to her calendar.

Plum Creek's donations were well below the maximum allowed – $10,000 during a two-year election cycle. But national experts say corporate donations are not charity.

"Clearly these companies give money for a reason, and the reason is to get access to lawmakers," said Bill Hogan, who investigates money and political access for The Center for Public Integrity, a nonpartisan watchdog group.

High-level meetings with federal agencies aren't unusual for large corporations, Hogan said. "I think it is pretty routine. But again, it's routine for power players, not for Joe or Jane Citizen," he said.

Plum Creek's donations to the delegation did not influence Snowe or Collins or have anything to do with the meeting they arranged, their spokesmen said. "We had the request from the governor, and that was fulfilled," Snepp said.

A search of a state database found no direct campaign contributions from Plum Creek to Baldacci. The company did give $15,000 last October to the Maine Democratic State Committee, which campaigns independently on behalf of party candidates such as Baldacci.

A Baldacci spokesman said campaign contributions, direct or indirect, would not influence the governor's policy positions.

AN OPEN-DOOR POLICY

It appears from the records that Plum Creek did not need outside help to arrange a meeting with MacDonald.

MacDonald was known in the agency for bullying and overruling scientists and for an open-door policy toward industry, according to an investigative report completed in March by the Office of Inspector General. MacDonald, the report said, "has met with, lunched with, spoken to, allowed access to high-level DOI officials, and provided nonpublic information on FWS internal deliberations to lobbyists and private sector entities."

Fawcett, the lawyer Plum Creek hired to handle its case in Washington against the proposal, served on the transition advisory teams for President Bush and DOI Secretary Kempthorne when he was Idaho's governor.

Fawcett had at least a half dozen meetings with Julie MacDonald between April and November of 2006, according to her calendar. He said he recalls two of them that were about lynx and Plum Creek, and that he also was handling other matters at the time. Other top Interior officials also attended, he said.

Two of the scheduled meetings on MacDonald's calendar list Fawcett along with Plum Creek's lobbyist, attorney and others. One of the meetings between Plum Creek and MacDonald took place Oct. 5, one month before the final rule was announced.

Such meetings are a routine part of business in Washington, according to Fawcett. There were other meetings with federal officials in Maine and Montana, he said.

"That would be the normal course," Fawcett said. "When my client has a problem, I go talk to the people who are involved with it."
In July, a couple of months after MacDonald's resignation, the Interior Department said MacDonald had influenced the lynx decision in two ways that raised doubts about the scientific credibility of the rule.

First, just four days before the court-ordered deadline for the first habitat proposal in November 2005, MacDonald ordered all U.S. Forest Service Lands removed from the habitat area.

And second, MacDonald's meetings with representatives of Plum Creek, the Maine Forest Products Council and Maine's congressional delegation led others in the department to pre--emptively remove Maine lands from the final plan, according to a Fish & Wildlife Service memo written this summer as part of the internal review.

"Presumably anticipating that Ms. MacDonald would not want Plum Creek lands designated as critical habitat, the Washington office verbally directed that critical habitat would not be designated on Plum Creek properties. Because of the inequity that would result (if only Plum Creek was excluded), we determined that all private commercial forestlands should be excluded thereby maintaining cooperative working relationships with landowners," the memo said
.
The department can remove lands from a critical habitat area when the costs of regulation outweigh the benefits, as long as the decision is justified in the record and the species is protected by other formal management plans, according to the memo.

COURT MAY INTERVENE

Now landowners and conservationists are waiting to see what comes of the review.

Fawcett and other representatives of landowners say the decision being reviewed remains sound from a scientific and legal perspective.
"At the end, it will be realized that our case in this is strong and that we have the facts and the law," Fawcett said.
Conservationists are hoping the Interior Department changes the maps again to include the Maine forestlands. But they also have filed a notice that they may challenge the habitat decision in court.

The issue is likely to go back to court in any case, and it may not take long to get there.

A federal judge in Washington, D.C., who has been presiding over the Canada lynx litigation for years said last month her patience is limited. Judge Gladys Kessler ordered that the Department of Interior report to her by Oct. 15 what action, if any, it will take "regarding the involvement of Julie MacDonald in the designation of the critical habitat for the Canada lynx."

Staff Writer John Richardson can be contacted at 791-6324 or at: jrichardson@pressherald.com