Fish and Wildlife whistleblower retaliation case raises questions

A top Texas official reported political interference and scientific misconduct.

 

Gary Mowad enjoyed a 25-year career at the U.S. Fish and Wildlife Service. Mostly, that was in law enforcement, working as a special agent posted in places like Colorado and Alaska, and later, as deputy chief in DC. At the end, he served for a couple years as the agency’s top administrator and head biologist in Texas. Nearly everyone who worked with him seemed to hold him in high regard. And yet, by February, 2013, he appears to have essentially been forced into retirement by his superiors for reporting what he construed to be scientific misconduct and political interference with an endangered species listing. The whistleblower retaliation case, which the government settled last fall, raises alarming questions about Fish and Wildlife’s handling of such complaints, as well as how much politics influence the agency’s science.

The drama of Mowad’s last months in office unfolds in a nearly 700-page transcript of the hearing for his retaliation complaint. Released by the nonprofit Public Employees for Environmental Responsibility in late February, it’s received little press. There’s been just one extensive piece on the case, by Houston Chronicle writer Matthew Tresaugue, which is now making the rounds in Texas papers.

Among the players is the sloe-eyed, sand-colored dunes sagebrush lizard. In 2010, the agency proposed listing the species as endangered. Its habitat, which straddles the Texas-New Mexico border and the oil-and-gas-booming Permian Basin, had declined 40 percent since 1985. Yet, though little had changed on the ground, the agency reversed its position and pulled the proposal in the summer of 2012. The decision was based in part on the Texas Conservation Plan, signed just months before. Under it, private landowners agree to voluntarily implement conservation measures to protect the lizard, in theory allowing both economic activity and species recovery. In exchange, they receive assurance that they won’t have to put up with more onerous land-use restrictions if the agency later decides to list the lizard. But those agreements, arranged through the Texas Comptroller’s Office, not its wildlife department, were confidential.

As the agency's top Texas-based official at the time, Mowad didn’t think that was adequate or legally defensible. “We weren’t allowed to know where the impacts to the species occurred or where the mitigation to offset those impacts was,” he testified. “In my opinion and the opinion of those who know this and do this work everyday, this plan was not only not enforceable, but it wasn’t even verifiable.”

He charged that one of the reasons it went through was that Deputy Director Joy Nicholopoulos of the Region 2 office, which covers Arizona, New Mexico, Oklahoma and Texas, had an inappropriately close relationship with the Texas Comptroller and her associates and gave them preferential treatment. Indeed, Nicholopoulos passed over his recommendations for biologists to review the listing package, and essentially ordered him to appoint a less-experienced biologist with whom she had a close personal relationship. That biologist was moved out of his chain of command, and he was kept out of subsequent reviews.

He also felt, based on an offhand comment made by Region 2 Director Benjamin Tuggle, that the outcome of the listing decision was predetermined: It would be politically inconvenient to list a lizard in a basin producing 20 percent of the nation’s domestic energy supply in an election year.

In the summer of 2012, he reached out to the Department of Interior’s Office of Inspector General to report his suspicions. In mid-September, he lodged a complaint with the Service’s Office of the Science Advisor, which was relayed to one of USFWS Director Dan Ashe’s deputies. The day after that complaint’s closure on Sept. 25, Mowad’s nightmare began.

Tuggle and Nicholopoulos called Mowad, who was pulling a full workload in Austin, to tell him he was to report to the Albuquerque office for a work detail lasting an indeterminate amount of time. Though it’s unclear whether or how Mowad’s official complaints made it back to them, Nicholopoulos was already aware Mowad had concerns about her.

Mowad expressed repeatedly that he needed to be in Austin because his mother had Alzheimer’s-induced dementia and needed his care, and that his daughter was just starting high school. Yet his requests for telework and flexible scheduling were denied. He filed a formal complaint of whistleblower retaliation with the Inspector General. When he finally arrived in Albuquerque, no housing had been arranged; the agency had not even provided a computer. The tasks he was supposed to complete were never clearly spelled out. For weeks, Texas’ highest fish and wildlife official alleges, he was forced to essentially twiddle his thumbs.

As the incident unfolded, Associate Inspector General for Whistleblower Protection Laurie Larson-Jackson called Tuggle several times for explanation and found his justification “wanting,” she testified. “It did not make sense to me that there was a decision to detail Gary Mowad, and Gary Mowad only, that there was no one else who could do this work … but there was no amount of detail whatsoever as to what (he) would be doing …”

The work also appeared to have no end. Back in Austin, Tuggle and Mowad’s supervisor called a special meeting to divvy out his regular duties. “I’d never seen (that) in my 38-plus year career,” Arlington field office supervisor Tom Cloud testified. “I felt (the relocation) was permanent.”  Afterwards, he remembers exchanging looks with another field supervisor and saying, “well, I think Gary’s toast.”

Mowad made one last-ditch attempt to transfer into the Office of the Science Advisor in January but was rebutted, and, feeling he had no other option, retired. “That was very disappointing to me. I loved the service, I loved my mission,” says Mowad from the private consulting practice he now runs. “But somebody had to stand up.”

Worst, thoughespecially as the Fish and Wildlife Service gears up to make a politically delicate decision about whether the greater sage grouse, with habitat in 11 states, deserves endangered species protectionis evidence presented at the trial that there was a similar pattern in other offices under Tuggle’s leadership that may have been tolerated by the agency’s DC office. Three other retaliation and scientific misconduct cases were proceeding in Oklahoma, and despite months of warnings to Tuggle and Director Dan Ashe and his deputies, none of the offending supervisors had been formally disciplined, according to a 2013 letter from the Inspector General to a deputy Interior Secretary.

As for the lizard, Defenders of Wildlife and the Center for Biological Diversity have sued to overturn the agency’s decision not to list it, using the same critique of the private land conservation plans that Mowad had made. They lost in district court last fall, but are challenging the ruling. “Our appeal is pretty much the best hope for the lizard at this point,” says CBD’s Endangered Species Director Noah Greenwald. If the Fish and Wildlife Service prevails, it will set a precedent that significantly lowers the standards voluntary conservation plans must meet in order to be used as justification for not listing a species, adds Ya-Wei Li, Defenders’ director of endangered species conservation.

“The critter didn’t get a fair shake,” concludes Mowad. “What I’ve seen within the Service is a disturbing recent trend where decision-making (on species) is kept with the regional leadership. In my opinion, the regional leadership has a politically-driven outcome they want to see and they drive staff and resources to ensure they get it.”

Sarah Gilman is a High Country News contributing editor based in the Pacific Northwest. She tweets @Sarah_Gilman. Photograph of dunes sagebrush lizard, courtesy USFWS.