[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
CANADA LYNX INTERAGENCY NATIONAL SURVEY AND ENDANGERED SPECIES DATA
COLLECTION
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
March 6, 2002
__________
Serial No. 107-89
__________
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana James P. McGovern, Massachusetts
Greg Walden, Oregon Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho Hilda L. Solis, California
Thomas G. Tancredo, Colorado Brad Carson, Oklahoma
J.D. Hayworth, Arizona Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Tim Stewart, Chief of Staff
Lisa Pittman, Chief Counsel/Deputy Chief of Staff
Steven T. Petersen, Deputy Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
C O N T E N T S
----------
Page
Hearing held on March 6, 2002.................................... 1
Statement of Members:
Gallegly, Hon. Elton, a Representative in Congress from the
State of California, Prepared statement of................. 26
Hansen, Hon. James V., a Representative in Congress from the
State of Utah.............................................. 2
Hastings, Hon. Richard Doc, a Representative in Congress from
the State of Washington.................................... 4
Inslee, Hon. Jay, a Representative in Congress from the State
of Washington.............................................. 3
McInnis, Hon. Scott, a Representative in Congress from the
State of Colorado.......................................... 6
Prepared statement of.................................... 8
Statement of Witnesses:
Franklin, Thomas M., Wildlife Policy Director, The Wildlife
Society.................................................... 68
Prepared statement of.................................... 69
Malfi, Ronald, Acting Managing Director, Office of Special
Investigations, U.S. General Accounting Office............. 10
Prepared statement of.................................... 12
McKelvey, Kevin S., Ph.D., Research Scientist, Rocky Mountain
Research Station, Forest Service, U.S. Department of
Agriculture................................................ 61
Prepared statement of.................................... 62
Mills, L. Scott, Ph.D., Wildlife Biology Program, School of
Forestry, University of Montana............................ 53
Prepared statement of.................................... 54
Rey, Hon. Mark, Under Secretary, Natural Resources and
Environment, U.S. Department of Agriculture................ 34
Prepared statement of.................................... 34
Thompson, Tom L., Deputy Chief, National Forest System....... 35
Prepared statement of.................................... 37
Williams, Steven A., Director, Fish and Wildlife Service,
U.S. Department of the Interior............................ 40
Prepared statement of.................................... 42
OVERSIGHT HEARING ON CANADA LYNX INTERAGENCY NATIONAL SURVEY AND
ENDANGERED SPECIES DATA COLLECTION
----------
Wednesday, March 6, 2002
U.S. House of Representatives
Committee on Resources
Washington, DC
----------
The Committee met, pursuant to call, at 10 a.m., in room
1324, Longworth House Office Building, Hon. James V. Hansen
(Chairman of the Committee) presiding.
The Chairman. The Committee will come to order. We are
having a wee bit of a problem this morning, in that there is
two important conferences going on, one with the Republicans
and of course one with the Democrats, and because of that a lot
of our guys are going to be late. If it is all right with the
Committee, I think we are just going to wait for about 5
minutes and then we will start this hearing. Is there any
objection?
Hearing none, that is what we are going to do. So if you
want to go back and chatter for 5 more minutes, have at it, and
we will be right back to you. But I did want to point out to
you what we are doing. Second, we always like to start on time.
We do appreciate our witnesses being here, and the many people
that have had to come a long way to be part of this hearing
today.
That said, we will, as they say in some areas, we will
``saunter'' for a while. But I would like to make one unanimous
consent request. I ask unanimous consent that the gentleman
from Washington, Doc Hastings, be allowed to sit on the dais
and participate in the hearing. Is there objection?
Hearing none, so ordered. Doc is actually an ex officio
member of this Committee anyway, and is on a leave of absence
because of sitting on the Rules Committee, and anyone who is
going to sit on the Rules Committee gets all the deference we
can possibly handle. These guys have to meet at 2:00 in the
morning when the rest of us go home, and Doc, we appreciate
your perseverance. I wouldn't go on that Committee for all the
tea in China.
But anyway, that said, we will wait for 5 minutes and then
we will start.
[Recess.]
STATEMENT OF THE HON. JAMES V. HANSEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF UTAH
The Chairman. The Committee will come to order. We
appreciate all of you being here with us at this time, and
possibly more people will show up. It is a very difficult day
for many of us.
Our hearing today is about the Canadian lynx, and I was
very troubled this past December when I was informed that
several Federal and State employees involved in the Canadian
Lynx Interagency National Survey had submitted at least five
unauthorized samples of lynx hair to the laboratory. Chairman
McInnis and I requested that the Inspector General and the
General Accounting Office (GAO) investigate these allegations.
Today's hearing will focus on the result of these inquiries.
I would first like to thank the Inspectors General from
both the Department of Interior and the Department of
Agriculture for acting so quickly in response to our letter. I
would also like to thank the GAO for their timely report, and
look forward to discussing the reports with all three agencies
today in this hearing.
We will attempt to answer some of the many questions that
have been raised by concerned citizens, members of this
Committee, and the scientific community. Did the actions of
these seven individuals adversely affect the National Lynx
Survey? How was this allowed to happen? What, if any,
safeguards and checks and balances do these two agencies have
in place now to keep this from happening again? Most
importantly, what else has occurred that we do not know about
yet?
While I served as Chairman of the Ethics Committee, my
belief in integrity and personal accountability were reinforced
daily. Public officials in any capacity, including employees of
Federal and State agencies, should be held to the highest
standards of moral and ethical conduct. We have the mantle of
the public trust on our shoulders, and we must act accordingly.
When we breach this trust, we must be willing not only to
accept what we have done but also to pay the consequences of
our actions.
In the issue before us today, this has not happened. In
fact, while involved Forest Service employees received
counseling, Fish and Wildlife Service scientists that submitted
unauthorized samples actually received merit pay raises for
their work on the lynx study. These seven scientists acted in
direct violation of peer review agency protocol. Their actions
were more than mere reflections of bad judgment.
Each of these individuals involved blatantly disregarded to
the rules that governed the survey. In doing so, besides being
unprofessional and unethical, they put the credibility of the
entire survey on the line, and if we had not been notified and
intervened, could have affected the management decisions in 15
States and 57 national forests.
Many of us have heard these types of allegations before.
This situation was brought to light by a retiring Forest
Service employee on his last day of work. I really wonder how
many similar incidents have occurred without our knowledge. How
many management decisions have been affected by results that
were tainted by breaches of protocol?
Some of these scientists stated that they were only testing
the system by submitting unauthorized control samples, making
sure that the lynx hair could be identified. If this is true,
it shows a fundamental mistrust that these scientists have for
the very science they are using. This is troubling to this
Committee, and we have oversight over these issues.
We need to make sure that this type of incident does not
happen again. Poor decisions and bad judgment cannot be the
basis for the management policy of our public lands. The
agencies involved must institute checks and balances from
within. Most importantly, all management decisions must be
based on sound science.
I hope that many of our questions and concerns may be
answered today, and I will look forward to discussion.
Mr. Inslee, are you the spokesman for the minority?
Mr. Inslee. We are that far down the totem pole, Mr. Chair,
I believe.
The Chairman. Well, we will turn to you if you have an
opening statement for us, and then we will turn to Chairman
Scott McInnis.
STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF WASHINGTON
Mr. Inslee. I do. I appreciate that, Mr. Chair, as always,
and appreciate the opportunity to have a few comments.
There has been a lot made about this instance, and perhaps
it is not surprising, and perhaps it is not surprising, too,
that there have been a lot of allegations made about this
incident before the facts are known. So I think it is a good
opportunity for us to really find out what did happen and what
did not happen in this case, so I welcome this opportunity to
have this hearing.
And I am not here, and I don't think anyone in this room is
here to defend the actions of the biologists who submitted
false hair samples, and I don't think anyone in this room will
take issue with the suggestion that this is not a good way for
science to be conducted. If nothing else, it allows people to
create issues where we shouldn't have issues, and so it
certainly is regrettable.
But what I do take issue with is any suggestion that this
is somehow just the tip of the iceberg, that Federal scientists
try to skew surveys on a regular basis with bad science, or
that this case signals a need for dramatic reforms to the
Endangered Species Act. With any of those suggestions, I very
strongly disagree.
What we will find today, I think, is that neither the
General Accounting Office nor the Interior Inspector General
found any evidence that this is a common occurrence, none, and
that all science that has been used in protecting endangered
species is somehow suspect. We just simply aren't going to find
evidence of that outside of this incident.
In addition, both Dr. Scott Mills and Mr. Tom Franklin will
tell us in no uncertain terms that wildlife biologists
nationwide, including Federal biologists, live by a code of
ethics and standards for professional conduct that they take
seriously. Indeed, in this instance, in this instance, although
it is clear that the judgments were flawed by these biologists,
of taking these steps without having a well-established
protocol for testing the lab, I think it will be very clear
that in fact the motivations of these biologists were to test
the accuracy of the lab because they were concerned that there
were inappropriate findings that there had been lynx where in
fact no lynx had existed.
So I think it is very interesting that the sort of
political spectrum on this perhaps has misjudged this, that in
fact the biologists acted of a motivation on the other side of
the coin, trying to assure that we didn't get false positives
on these lynx findings. Nonetheless, they were human and
mistakes were made. There is no question about that.
But from today's hearing I think that there is no evidence
that bad science is being used in the lynx survey to guide
management decisions. Dr. Mills will testify that the data
being produced by their lab for the lynx survey is sound, and
should not be discounted as some have suggested. In fact, their
survey contains so many controls and follow-up procedures that
he and Kevin McKelvey have said ``The probability of producing
false positives is extremely low, and the probability that
false positive results will trigger conservation responses is
nonexistent.''
In conclusion, there is no question that data falsification
is a serious matter, regardless of whether we are talking about
protection of the lynx, or the numbers of caribou calving in
the Arctic National Wildlife Refuge. It is not common practice,
however, and given that, I do not see this unfortunate incident
as justification for amendments to the ESA under the guise of
good science. Instead, it demonstrated that the system is
already in place to weed out bad science before it is used in
land management decisions.
And just one comment, too, in general. I do wonder why this
incident warranted four different investigations, while we
haven't had a similar focus on illegal logging of Ponderosa
pines in the Bitterroot, or the fact that the Fish and Wildlife
Service had to be sued three times before it actually listed
the lynx, or the fact that the Forest Service in the Pacific
Northwest violated environmental law after environmental law
after environmental law until the courts of this land finally
enforced the law.
And I think it would be helpful to our country if our
Committee generated as much concern and outrage about the
repeated, consistent, time over and over again that Federal
agencies have failed to enforce known environmental laws, as
they do about this incident. And thank you, Mr. Chair.
The Chairman. I thank the gentleman from Washington.
We are pleased to have with us a past member of the
Committee and an ex officio member of the Committee, who will
probably join us again when they kick him off the Rules
Committee. Great to have Doc Hastings with us, and we will turn
to him for an opening statement.
STATEMENT OF THE HON. RICHARD DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
Mr. Hastings. Thank you, Mr. Chairman. I want to thank you
for your reference to my keeping my seniority on this
Committee, and also for making reference to the fact that I am
on the Rules Committee, because later on this morning we will
be doing a rule on legislation from this Committee, so I
appreciate your keeping that in mind.
Mr. Chairman, time and time again Westerners and rural
Americans have been forced to shoulder the burden of land
policies based on questionable science. Unfortunately, today's
hearing isn't even about questionable science; it is about an
allegation of outright fraud.
The scandal involving the actions of the seven Forest
Service and U.S. Fish and Wildlife Service employees studying
the Canadian lynx in north central Washington illustrates the
sad fact that amid claims of scientific integrity in Federal
agencies, reliable evidence and sound scientific practices are
at times abandoned for the personal agendas of agency
personnel. This scandal shows a notable absence of checks to
ensure that only sound science shapes policy, and it brings to
light the ease by which Federal agencies can make decisions
based on assumptions rather than hard scientific evidence.
It is no surprise that the trust central Washington's
communities have for Federal agencies and their employees has
been steadily eroding for many years. Considering that the
Wenatchee and the Gifford Pinchot National Forests are
literally in the backyards of many whom I represent, it is no
surprise that this trust has just taken a dramatic turn for the
worst. Let me give you just two examples in that regard.
A decade after the designation of the spotted owl habitat
in that area that resulted in the end of harvesting for many of
the forest lands in Washington, we have come to learn that much
about the species is still unknown, including what habitat it
prefers. Unfortunately, the decision to seal off massive tracts
of valuable land that devastated nearby communities and cost
thousands of jobs, nevertheless that happened and we are still
feeling that. It appeared that the agencies acted on
environmentalists' claims and demands before sound science
could be considered.
And last summer irrigation water was shut off to farmers
because Federal biologists assumed that a certain amount of
water must remain in flow for fish. After this policy was
enacted, the National Academy of Science issued a report
declaring that there was not sufficient scientific evidence to
support the Federal denial of water in the Klamath Basin.
The story of the lynx differs only slightly from these past
experiences, but in a very significant way. In the case of the
spotted owl, biologists are still debating over the best
habitat years after the policy has shut down the forest. In the
Klamath Basin, deficient science was discovered months after
entire crops were lost due to a lack of water. In the case of
the lynx, however, we learned immediately that fraudulent
science had the potential--had the potential--to shape land use
policy.
In my mind and the minds of many Westerners, many issues
remain unknown in this example. For example, just how involved
were the Forest Service and the U.S. Fish and Wildlife? Why,
according to the IG, were the offending employees given bonuses
before the scandal was exposed? Were the biologists willingly
pursuing the expansion of lynx habitat in these national
forests?
The GAO has now concluded its report, and I am hopeful
today's hearings will get to the bottom of these questions.
What is abundantly clear to the residents of central Washington
and communities around the West is that the land use policies
are too often void of sound science.
Judging from experience, it is clear that the void is far
deeper than a handful of biologists in a lynx survey. And it is
also clear that when Federal agencies carry out the Endangered
Species Act, the line between scientific evidence, assumptions,
and personal agendas blurs. This is totally unacceptable to me.
We have been told by the agencies that submitting fake hair
caused no negative effect to the lynx survey? How can we be
sure that this sort of deception is not systemic within the
agencies? Federal agencies must not be allowed to hide breaches
in science to be sorted out later, upon discovery.
The Forest Service and U.S. Fish and Wildlife make their
land use policies in order to enforce the law, the Endangered
Species Act. If you have witnessed the devastation of these
policies, that these policies can have on entire communities,
in the affected communities, then you realize the power of the
law.
Enforcement cannot continue to be based on assumptions
masquerading as scientific fact, nor should there be any room
for ideological agendas. Every decision must be based on
irrefutable hard evidence and sound science. When sound science
is pushed aside because it is inconvenient or because employees
want to pursue personal agendas, there must be consequences,
because there certainly are consequences for the communities
that are forced to bear the brunt of these decisions. Once
again, Mr. Chairman, thank you very much for your courtesy in
allowing me to join you today.
The Chairman. I thank the gentleman from Washington.
Now I would like to turn to the Chairman of the
Subcommittee on Forests and Forest Health, Mr. Scott McInnis.
STATEMENT OF THE HON. SCOTT McINNIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. McInnis. Thank you, Mr. Chairman.
Mr. Chairman, let me begin my remarks by saying at the very
onset that there is well-established protocol for the testing
of the lab, and it is clearly outside the authority of field
offices to be testing the laboratory. Any remarks in regards to
a so-called excuse of testing the lab is nothing short of a
cover for wrongdoing.
Today our Committee will take a much-needed look at the
National Lynx Survey scandal, where seven Federal and State
officials are said by investigators to have knowingly planted
false data or evidence on at least three occasions on two
national forests, in violation of the peer reviewed,
scientifically valid species survey process. These allegations,
which have been substantially borne out by at least two
investigations, have stoked the worst fears and suspicions of a
lot of folks in the West: namely, that select Federal land and
resource management officials have a propensity to operate
outside the bounds of sound science and good faith when making
enduring decisions about the future management of our Federal
lands.
This unsettling string of events in Washington State
underscores just how susceptible so-called ``science'' is to
the whims of ill-guided decisionmakers. These incidents raise
very weighty questions about the way we do business on our
Federal lands, and for that reason I want to commend the
Chairman for bringing the issue before the Full Committee
today.
The essence of public service is best summed up in a single
word: trust. It is kind of like a police officer. We don't
expect a police officer to plant evidence, and we certainly
should have those same kind of expectations of Federal
employees.
For those of us who spend our professional lives making
decisions that affect our neighbors, our communities, and the
future of our country, credibility is our only currency.
Integrity is key. Whether we are talking about a Member of
Congress, your local police chief, or a Fish and Wildlife
Service biologist, trust is the coin of realm in our line of
work. Nobody expects perfection out of our public officials,
but when the American people can't even expect good faith and
pure motives out of their government, good decisions and
constructive decisionmaking processes become difficult.
Based on the facts already before us regarding what
transpired on these forests, it is objectively clear that the
implicated biologists trampled the public trust when they chose
to dump a peer-reviewed, scientifically authentic lynx survey
protocol in favor of their own half-baked, pseudo science
techniques. Their actions were plainly unethical, totally
unprofessional, and in my estimation deserving of more than a
token slap on the wrist. If credibility is in fact a public
official's only currency, these people are broke.
For everyone and every agency involved, the implications of
this incident have been far-reaching. In one fell swoop, the
lynx survey seven blew a hole in the credibility of the
National Lynx Survey, toppled public confidence in the Forest
Service and Fish and Wildlife Service, and raised the specter
that other similar ``scientific'' endeavors weren't really
about science at all.
While there has been a great deal of public speculation
about the motives of these ethically challenged individuals, in
my estimation we will never fully understand the impetus behind
these unauthorized actions until several key questions are
answered.
For example, why did the Forest Service biologist who first
blew the whistle on this whole affair wait until his last day
of employment to do it?
If the Fish and Wildlife biologist who submitted the
unauthorized lynx sample from the national forest was really
just trying to ``test the lab,'' why did he withhold that
information from the lab until he was called out by
investigators several months later?
Why, according to the field director of the National Lynx
Survey, did the same Fish and Wildlife biologist go to great
pains to ``hide the fact that he sent in a control sample''?
Similarly, why did the implicated Washington Division of
Fish and Wildlife biologists wait for an investigation before
they informed the lab about submitting an unauthorized lynx
sample?
Finally, and most importantly, why did all of the involved
Federal and State biologists knowingly choose to violate a
scientifically valid protocol when there were other legitimate
means, other legitimate means, of exploring their concerns in a
manner consistent with that protocol?
These are just a few of the many questions that must be
answered before we can reach any definitive judgment on the
motivation question. I hope the GAO will assist us with these
issues today.
Beyond these important questions, though, there are also
big questions about the way the agencies handled the incidents
after they occurred. Why did regional Forest Service and Fish
and Wildlife officials report these incidents to their
superiors in Washington, D.C. only after a congressional
inquiry into the matter some 15 months after the bogus planted
evidence samples were submitted?
Given the potential scope of damage that these activities
could have on lynx survey data, and given the blatant nature of
this ethical lapse, why in the name of common sense weren't the
implicated parties subject to punishment commensurate with the
gravity of their deeds? Instead, they were given bonuses by the
government for their performances. The idea that verbal
counseling, whatever that is, amounts to a real form of
punishment, is a joke.
Finally, if these unauthorized actions were in fact
serious, as all of the agencies have repeatedly said they were,
why were several of these biologists given merit pay raises and
special commendations and bonuses, etcetera, shortly after
intentionally breaching the lynx protocol by planting evidence?
The fact that these bureaucrats got this kind of
recognition while engaging in this unethical conduct is out of
line. At the end of the day, it says a great deal about the
cultural mind-set of these agencies. What is more, this
explains why a lot of folks in the West view these agencies
with an increasingly skeptical eye.
I look forward to the hearing today, and Mr. Chairman, I
thank you for the time.
[The prepared statement of Mr. McInnis follows:]
Statement of The Honorable Scott McInnis, Chairman, Subcommittee on
Forests and Forest Health
The Chairman.
Today, the Resources Committee will take a much needed look at the
national lynx survey scandal, where seven federal and state officials
are said by investigators to have knowingly planted false data on at
least three occasions on two national forests in violation of a peer-
reviewed, scientifically valid species survey process. These
allegations, which have been substantially borne out by at least two
investigations, have stoked the worst fears and suspicions of a lot of
folks in the West--namely, that select federal land and resource
management officials have a propensity to operate outside the bounds of
sound science and good faith when making enduring decisions about the
future management of our federal lands. This unsettling string of
events in Washington State underscores just how susceptible so-called
``science'' is to the whims of ill-guided decision makers. These
incidents raise very weighty questions about the way we do business on
our federal lands, and for that reason I want to commend the Chairman
for bringing the issue before the full Committee today.
Colleagues, the essence of public service is best summed up in a
single word--trust. For those of us who spend our professional lives
making decisions that affect our neighbors, our communities and the
future of our country, credibility is our only currency. Whether we're
talking about a Member of Congress, your local Police Chief, or a Fish
and Wildlife Service biologist, trust is the coin of the realm in our
line of work. Nobody expects perfection out of public officials, but
when the American people can't even expect good faith and pure motives
out of its government, good decisions and constructive decision-making
processes become difficult.
Based on the facts already before us regarding what transpired on
the Gifford Pinchot and Wenatchee National Forests, it is objectively
clear that the implicated biologists trampled the public trust when
they chose to dump a peer-reviewed, scientifically authentic lynx
survey protocol in favor of their own half-baked, psuedo-scientific
techniques. Their actions were plainly unethical, totally
unprofessional and, in my estimation, deserving of more than a token
slap on the wrist. If credibility is in fact a public official's only
currency, these people are dead broke.
For everyone and every agency involved, the implications of this
incident have been far-reaching. In one fell-swoop, the ``lynx survey
seven'' blew a hole in the credibility of the national lynx survey,
toppled public confidence in the Forest Service and Fish and Wildlife
Service, and raised the specter that other similar ``scientific''
endeavors weren't really about science at all.
While there has been a great deal of public speculation about the
motives of these ethically-challenged individuals, in my estimation we
will never fully understand the impetus behind these unauthorized
actions until several key questions are answered. For example, why did
the Forest Service biologist who first blew the whistle on this whole
affair wait until his last day with the Forest Service prior to
retiring to do so? If the Fish and Wildlife Service biologist who
submitted an unauthorized lynx sample from the Wenatchee National
Forest was really just trying to ``test the lab'', why did he withhold
that information from the lab until he was called out by investigators
several months later? Why, according to the Field Director of the
National Lynx Survey, did the same Fish and Wildlife biologist go to
great pains to ``hide the fact that [he] sent in a control sample''?
Similarly, why did the implicated Washington Division of Fish and
Wildlife biologists wait for an investigation before they informed the
lab about submitting an unauthorized lynx sample? Finally and most
importantly, why did all of the involved federal and state biologists
knowingly choose to violate a scientifically valid protocol when there
were other legitimate means of exploring their concerns in a manner
consistent with that protocol?
These are just a few of the many questions that must be answered
before we can reach any definitive judgment on the motivation question.
I hope the GAO will shed some light on these issues today.
Beyond these important questions, though, there are also big
questions about the way the agencies handled the incidents after they
occurred. Why did regional Forest Service and Fish and Wildlife Service
officials report these incidents to their superiors in Washington, DC
only after a Congressional inquiry into the matter some 15 months after
the bogus samples were submitted? Given the potential scope of the
damage that these activities could have had on the lynx survey data,
and given the blatant nature of this ethical lapse, why in the name of
common sense weren't the implicated parties subjected to punishment
commensurate with the gravity of their deeds? The idea that verbal
counseling'', whatever that is, amounts to a real form of punishment is
a joke. Finally, if these unauthorized actions were in fact serious, as
all of the agencies have repeatedly said they were, why were several of
these biologists given merit pay raises and special commendations
shortly after intentionally breeching the lynx protocol and the public
trust?
The fact that these malfeasant bureaucrats got a pay bump and a pat
on the back after engaging in totally unethical conduct is, in my
estimation, a singular outrage. At the end of the day, it says a great
deal about the cultural mindset of these two agencies. What's more, it
explains why a lot of folks in the West view these agencies with an
increasingly skeptical eye. I look forward hearing from the
Administration witnesses to find out what their plans are to remedy
this brazen mindset, and to head-off similarly scandalous conduct out
in the future.
It is with that Mr. Chairman that I once again commend you for
convening this hearing and I look forward to hearing from our
distinguished panel of witnesses.
______
The Chairman. Thank you, Chairman McInnis.
Members of the Committee and our witnesses here, we would
like to start with you, but if you will look back and see those
two lights up on the wall, that means we have a vote on. I
think it would probably be best at this point, with the
conclusion of your statement, that we just go ahead and make
that vote, then hurry back and we will turn immediately to our
witnesses. Would that be all right with everyone?
I guess no one is going to object, so we will just go ahead
and stand in recess.
[Recess.]
Mr. McInnis. [Presiding.] The Committee is going to come
back to order. We will have members that will be coming back in
here. We have another vote in less than an hour, so we are
going to try and cover some territory here. For the rest of the
members, we will go ahead and have you submit your opening
statements for the record. We will go ahead and proceed with
our panels.
As you noted, in our previous opening statements somebody
had a mobile phone out there. If you have a cellular phone,
turn it off now. That is a real interruption. We don't want
that kind of interruption in this Committee room.
With that, we will go ahead with panel one. We have got Ron
Malfi--is that how we do it?
Mr. Malfi. That is correct.
Mr. McInnis. Good, Ron. Patrick Sullivan, who is assisting
him there, and I think they also have their counsel there. Ron,
I know you have got an opening statement, but then this
scenario is somewhat complicated so I would kind of--we
obviously will have your testimony submitted for the record,
but I really am looking to you to kind of walk us through the
incident so we have an understanding of the logistical--you
know, how it happened logistically. So, Ron, if you would go
ahead, you may proceed.
STATEMENT OF RONALD MALFI, ACTING MANAGING DIRECTOR, OFFICE OF
SPECIAL INVESTIGATIONS, U.S. GENERAL ACCOUNTING OFFICE,
ACCOMPANIED BY PATRICK SULLIVAN, ASSISTANT DIRECTOR, OFFICE OF
SPECIAL INVESTIGATIONS, AND BOB KRAMER, ASSISTANT GENERAL
COUNSEL
Mr. Malfi. What I would like to do is, I would like to read
this statement, just to give an overview of how the
investigation turned out, and then any questions that you have,
or anybody else on the Committee, I will answer them for you.
Mr. Chairman and members of the Committee, we are here
today to discuss the investigation you asked us to undertake
concerning allegations that biologists with both Federal and
State agencies submitted or participated in the submission of
unauthorized hair samples reported from the Gifford Pinchot and
Wenatchee National Forests in response to the National
Interagency Canadian Lynx Survey. The report titled ``Canada
Lynx Survey: Unauthorized Hair Samples Submitted for Analysis''
dated March 3, 2002, released today, details our investigation,
and I ask that it be made part of the hearing record.
Accompanying me today is Assistant Director Patrick
Sullivan and Assistant General Counsel Bob Kramer.
The National Interagency Canada Lynx Survey was designed to
determine the presence of Canadian lynx through DNA analysis of
hair samples recovered from scratch pads located in forests of
the northern United States. Included in the survey were the
Gifford Pinchot and the Wenatchee National Forests in
Washington.
The survey covered a 3-year period from 1999 through 2001,
was sponsored by the U.S. Forest Service, with the assistance
of the U.S. Fish and Wildlife and the Washington Department of
Fish and Wildlife. The University of Montana's laboratory
performed the DNA testing of hair samples collected under the
survey. If the national survey had detected Canadian lynx in an
area not previously recognized as a known lynx habitat, a
follow-up survey would have been conducted in that area to
determine whether or not a lynx population was present.
Beginning in January 2002, we investigated the facts and
circumstances surrounding the submission of the unauthorized
samples to the laboratory as part of the national survey, and
focused the investigation on whether the biologists involved
had communications about their submissions.
In summary, there were four instances in which unauthorized
hair samples not obtained from the Wenatchee or Gifford Pinchot
National Forests were submitted for DNA testing as part of the
national survey for those forests. These included one
submission of bobcat hair in 1999 and three submissions of lynx
hair in September and October of 2000.
The Forest Service, Fish and Wildlife Service, and
Washington Department of Fish and Wildlife employed the
biologists who made these submissions. These biologists
maintain that they submitted these samples to test the accuracy
of the work performed by the laboratory, although they knew
that the protocol for the national survey did not provide for
such action. They also stated that they did not have the
authority to make these submissions, and that they were aware
that they had alternatives for testing the laboratory other
than submitting samples as part of the survey.
The protocol under which the survey was conducted describes
the method for detecting lynx, obtaining lynx hair samples, and
submitting the samples to the laboratory for analysis. The
protocol did not provide procedures to submit hair samples
collected outside the survey to test the accuracy of laboratory
results. Further, the director of the laboratory told us that
there was no procedure whereby the biologists who submitted
these samples would receive preliminary results so that they
could subsequently notify the laboratory of their unauthorized
submissions.
In 2000, one of the participants, a biologist with the
Forest Service, notified the field coordinator for the national
survey that a controlled sample had been submitted in
connection with the survey for the Gifford Pinchot National
Forest. However, he did not identify which sample was the
control.
As a result, the laboratory and the Forest Service decided
not to analyze the hair samples submitted as part of the 2000
survey for the region that included the Gifford Pinchot and the
Wenatchee National Forests until the Forest Service completed
an investigation and identified all of the unauthorized
submissions. None of the other biologists who made unauthorized
submissions disclosed their actions until after the Forest
Service commenced its investigation.
After the unauthorized samples were identified, the
laboratory completed its analysis of the 2000 survey samples,
including the three unauthorized samples. These three samples
were determined to be Canadian lynx, and were the only samples
submitted for analysis for the Gifford Pinchot and Wenatchee
National Forests that actually tested positive for Canadian
lynx.
We found that some of the individuals who participated in
the unauthorized submissions had discussions about submitting
unauthorized samples both prior to and after the submissions.
For example, a biologist with the Fish and Wildlife Service had
prior discussions with two of the three biologists who made
unauthorized submissions in 2000. The biologist did not make
any submissions, but participated in the collection of hair
collected from a captive lynx which was the source of the
unauthorized samples submitted by both a Forest Service
biologist from the Gifford Pinchot National Forest and another
Fish and Wildlife Service biologist from the Wenatchee National
Forest.
Further, the employees of the Washington Department of Fish
and Wildlife who made the unauthorized submissions did not
discuss those submissions in advance with persons outside their
department. They did, however, subsequent to the submissions,
discuss their actions with employees of both the Forest Service
and the Fish and Wildlife Service, some of whom also made
unauthorized submissions.
We also found that other employees in the Forest Service,
Fish and Wildlife, and Washington Department of Fish and
Wildlife, knew of and/or participated in the unauthorized
submissions, including some supervisors.
Mr. Chairman, that completes my prepared statement. We
would be happy to respond to any questions you or other members
may have at this time.
[The prepared statement of Mr. Malfi follows:]
Statement of Ronald Malfi, Acting Managing Director, Office of Special
Investigations, United States General Accounting Office
Mr. Chairman and members of the Committee:
We are here today to discuss the investigation you asked us to
undertake concerning allegations that biologists with both federal and
state agencies submitted or participated in the submission of
unauthorized hair samples purportedly from the Gifford Pinchot and
Wenatchee National Forests, in response to the National Interagency
Canada Lynx Survey (National Survey).
The report titled, Canada Lynx Survey. Unauthorized HairSamples
Submitted for Analysis, dated Mar. 3, 2002, (GAO-02-338R) released
today details our investigation, and l ask that it be made a part of
the hearing record. Accompanying me today is Assistant Director Patrick
Sullivan.
The National Interagency Canada Lynx Survey (Protocol) was designed
to determine the presence of Canada lynx through deoxyribonucleic acid
(DNA) analysis of hair samples recovered from scratch pads located in
forests of the northern United States. Included in the survey were the
Gifford Pinchot and Wenatchee National Forests, in Washington. This
survey covered a three-year period from 1999 through 2001, was
sponsored by the U. S. Forest Service, with the assistance of the U. S.
Fish and Wildlife and the Washington Department of Fish and Wildlife.
The University of Montana's laboratory performed the DNA testing of
hair samples collected under the survey. If the National Survey had
detected Canada lynx in an area not previously recognized as a known
lynx habitat, a follow-up survey would have been conducted in that area
to determine whether or not a lynx population was present.
Beginning in January 2002, we investigated the facts and
circumstances surrounding the submission of the unauthorized samples to
the laboratory as part of the National Survey and focused the
investigation on whether the biologists involved had communications
about their submissions.
In summary, there were four instances in which unauthorized hair
samples not obtained from the Wenatchee and Gifford Pinchot National
Forests, were submitted for DNA testing as part of the National Survey
for those forests. These included one submission of bobcat hair in
1999, and three submissions of lynx hair in September and October 2000.
The Forest Service, Fish and Wildlife Service, and Washington
Department of Fish and Wildlife employed the biologists who made those
submissions. These biologists maintain that they submitted these
samples to test the accuracy of the work performed by the laboratory,
although they knew that the Protocol for the National Survey did not
provide for such action. They also stated that they did not have the
authority to make these submissions and that they were aware that they
had alternatives for testing the laboratory other than submitting
samples as part of the survey.
The Protocol under which the survey was conducted describes the
method for detecting lynx, obtaining lynx hair samples, and submitting
the samples to the laboratory for analysis. The Protocol did not
provide procedures to submit hair samples collected outside the survey
to test the accuracy of laboratory results. Further, the director of
the laboratory told us that there was no procedure whereby the
biologists who submitted samples would receive preliminary results, so
that they could subsequently notify the laboratory of their
unauthorized submissions.
In 2000, one of the participants, a biologist with the Forest
Service, notified the field coordinator for the National Survey that a
control sample had been submitted in connection with the survey for the
Gifford Pinchot National Forest. However, he did not identify which
sample was the control. As a result, the laboratory and the Forest
Service decided not to analyze the hair samples submitted as part of
the 2000 survey for the region that included the Gifford Pinchot and
Wenatchee National Forests until the Forest Service completed an
investigation and identified all of the unauthorized submissions. None
of the other biologists who made unauthorized submissions disclosed
their actions until after the Forest Service commenced its
investigation.
After the unauthorized samples were identified, the laboratory
completed its analysis of the 2000 survey samples, including the three
unauthorized samples. These three samples were determined to be Canada
lynx, and were the only samples submitted for analysis for the Gifford
Pinchot and Wenatchee National Forests that tested positive for Canada
lynx.
We found that some of the individuals who participated in the
unauthorized submissions had discussions about submitting unauthorized
samples both prior to and after the submissions. For example, a
biologist with the Fish & Wildlife Service had prior discussions with
two of the three biologists who made unauthorized submissions in 2000.
This biologist did not make any submission, but participated in the
collection of hair collected from captive lynx, which was the source of
the unauthorized samples submitted by both a Forest Service biologist
with the Gifford Pinchot National Forest and another Fish and Wild Life
Service biologist with the Wenatchee National Forest.
Further, the employees of the Washington Department of Fish and
Wildlife who made the unauthorized submissions did not discuss those
submissions in advance with persons outside their Department. They did,
however, subsequent to the submissions, discuss their actions with
employees of both the Forest Service and Fish and Wildlife Service,
some of whom also made unauthorized submissions.
We also found that other employees of the Forest Service, Fish and
Wildlife, and Washington Department of Fish and Wildlife knew of and/or
participated in the unauthorized submissions, including some
supervisors.
Mr. Chairman, that completes my prepared statement. We would be
happy to respond to any questions you or other members of the Committee
may have at this time.
______
Mr. Malfi. Excuse me, sir. I forgot one thing. We have
charts here that we want to put up. Pat Sullivan will give you
an explanation in regards to the time line that we have
concerning this investigation.
Mr. McInnis. Mr. Sullivan, if you would go ahead and
proceed us through with the charts.
Mr. Sullivan. Yes, sir. The first chart is a diagram of the
State of Washington--
Mr. McInnis. Let's see, Mr. Sullivan. We have got part of
the Committee over here, too. There you are. That is much
better. Thank you.
Mr. Sullivan. --according to the State of Washington for
this investigation. The line in the middle--
Mr. McInnis. Mr. Sullivan, again I apologize for the
interruption, but for the panel's convenience, you do have his
in your handouts, so it will make it a little easier for you to
follow.
Thank you. You may proceed.
Mr. Sullivan. Mr. Chairman, the line in the middle is the
crest of the Cascade Mountains. Three national forests played a
role in this investigation: the Okanogan National Forest; the
Wenatchee National Forest, which stretches all the way down to
Yakima; and the Gifford Pinchot National Forest.
Etonville and Union Gap are significant. Etonville is the
location of the Northwest Trek zoological park, and Union Gap
is the location of a captured pet lynx which came into this
case. The cites of Lacey, Vancouver, Yakima, and Wenatchee are
locations where employees in this investigation were domiciled
or where they worked.
We had unauthorized submissions from the Gifford Pinchot
National Forest and the Wenatchee National Forest. The Okanogan
National Forest had positive hits during 1999 and 2000, and
that is a known lynx habitat area.
I will now proceed on the time line.
In 1998 was the Weaver study which included portions of
Washington and Oregon, specifically the Wenatchee National
Forest and the Gifford Pinchot National Forest. In March 1999,
Dr. Weaver issued his preliminary results which showed positive
DNA hits for lynx in Wenatchee and Gifford Pinchot.
July 1999, for Region 6 of the Forest Service there was a
National Lynx Survey training session, in which the majority of
the personnel in this investigation attended this training
session.
Later on in 1999, in the Fall of '99, there was an
unauthorized submission of a bobcat pelt hair by a Washington
State employee we have identified as State employee No. 1, and
that was from the Wenatchee National Forest.
Spring of 2000, the results from the 1999 survey were
released by the lab, and it showed negative DNA hits for lynx
for the Wenatchee and Gifford Pinchot National Forests.
We next move on to later on in the spring of 2000. The
employee who submitted the unauthorized submission in 1999, the
Washington State employee, informed a Forest Service employee
from the Wenatchee National Forest and Fish and Wildlife
service employee No. 1 of his unauthorized submission.
Moving on, in September of 2000 we had a trip to the
Northwest Trek by Fish and Wildlife Service employee No. 2 and
Forest Service employee No. 1, at which time they obtained hair
from a captive lynx at the zoo there. There were subsequently
three unauthorized submissions during the 2000 season.
The first submission took place by Washington State
employee No. 2. He submitted hair from the pet lynx that was
captured in Union Gap, Washington. September and October,
unauthorized submissions by Forest Service employees with hair
from the Northwest Trek, and a subsequent submission by a Fish
and Wildlife employee with hair from the Northwest Trek.
On September 29th, Forest Service employee No. 1 telephoned
the national coordinator, field coordinator for the national
survey of the Forest Service in Montana, and informed him via
voice mail that there were some control samples being
submitted.
On October 2nd when the field coordinator received that
voice mail message from the Forest Service employee, he
notified his supervisors, and the lab and the Forest Service
jointly made a decision to set aside all samples from Region 6,
which included Wenatchee and Gifford Pinchot, until such time
as the Forest Service could conduct an investigation and
identify the unauthorized submissions.
Approximately spring to summer of 2000, they completed
their analysis and determined that there were negative hits
from all the samples from Wenatchee and Gifford Pinchot, with
the exception of the three unauthorized samples, which by that
time they had identified.
And to complete the cycle, in June of 2001 Dr. Weaver
issued his final report from his 1998 survey, in which he
acknowledged that samples he had collected from Wenatchee and
Gifford Pinchot were in fact contaminated, and he invalidated
his original results.
That completes my presentation, Mr. Chairman.
[The information referred to follows:]
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Mr. McInnis. Thank you very much. We will go ahead and move
on to questioning by the Committee. I will begin the
questioning.
At the hearing--and Ron, I will direct this to you--at the
hearing in front of the Washington State legislature earlier
this year, State and Federal officials said that each of the
incidents were isolated and that the three implicated agencies
did not collude with one another during this process. Would you
agree with that assessment? And also, how extensively did the
agencies work with one another in submitting the unauthorized
samples?
Mr. Malfi. There was communications between the individuals
that were involved in the unauthorized samples. First, there
was communication between the first State department, the
Washington State Fish and Wildlife individual who sent in a
sample in 1999. He told one of the U.S. Fish and Wildlife
people that he submitted his sample in the year 2000.
That person had conversations with another Fish and
Wildlife biologist, who also had conversations with a Forest
Service biologist. The Forest Service biologist and the Fish
and Wildlife biologist went up to get the samples from the
lynx. They got them based on knowing that they were going to
submit these to the lab as unauthorized submissions.
Basically, they had conversations about how these things
were going to be sent in, whether they should be sent in as a
sample or should they be sent in as part of the survey, and
they have all basically agreed that they should be sent in as
part of the survey. One of the Forest Service people that
actually picked up the samples gave it to another employee who
actually did the submission, so there was communication among
some of the individuals who were either involved in getting the
samples or actually submitting the samples.
Mr. McInnis. And were the implicated biologists forthright
and honest during your investigation? How were those
interviews?
Mr. Malfi. On some of the interviews that I personally
conducted, which were re-interviews, to go back to individuals
to talk to them, they seemed to be very guarded in their
comments that they made. The interviews lasted a period of time
in order to try and elicit all of the facts that we were able
to obtain.
Mr. McInnis. Were the biologists aware that their actions
were in direct contravention of the protocol, and did they know
there were other legitimate means of testing the laboratory,
and that it was not within their authority to carry out this
testing, so-called testing?
Mr. Malfi. Correct, and I will concentrate basically on the
Federal employees. In our conversations with them, they all
admitted that they knew it was not in the protocols, that they
weren't allowed to do this. They all knew they had no
authorization to do this, nor were they of the pecking order to
actually test the laboratory.
They also stated that they knew that there was alternative
methods to test the lab, as opposed to making it part of the
survey. Two of the biologists that we spoke to, one with the
Forest Service and one with Fish and Wildlife, really had no
explanation as to why they made it part of the survey.
One Fish and Wildlife biologist did have an explanation in
regards to why they felt it was imperative or was important to
them to submit this as part of the survey, and they felt that
if they submitted it as part of the survey, that it would be
treated exactly like all the other samples; that if they
flagged it as a sample, that possibly the lab would not conduct
a test on it or that they would treat it differently. But they
quantified that statement by saying that they realized that
they could have sent in a bobcat hair or other type of hair in
order to get the kind of same results in testing the lab.
Mr. McInnis. And did you identify any evidence that would
point to the fact that Fish and Wildlife biologists would have
notified the lab if not approached by investigators?
Mr. Malfi. Sir, could you repeat that question?
Mr. McInnis. The key I am trying to get here is, was there
any evidence that these biologists would have come forward on
their own, voluntarily, to tell you that there was planted
evidence, Fish and Wildlife, that there was planted evidence,
prior to the investigation commencing or prior to the whistle-
blower? Did you come up with any evidence at all that ``Hey,
we're going to do a test this week, but we'll let them know
next week that we put in this, we planted this test here, this
sample.''
Mr. Malfi. The one Fish and Wildlife biologist that was the
connection between the Forest Service person and the other Fish
and Wildlife biologist stated that they had no intentions of
notifying the lab because they did not themselves, even though
they picked up samples, did not submit any samples. They felt
that the Forest Service person was going to contact the lab.
That individual, the Forest Service person, told us that
they always were going to contact the laboratory. But then we
asked them why, if they were going to contact the lab and tell
them that there was a false sample, ``Why did you submit it as
part of the survey?'' And he said that the other people he
spoke to, one of whom was the person who actually submitted the
sample, decided they wanted to make it part of the survey.
And we asked him, you know, ``Why would you allow one of
your co-workers to submit this as part of the survey, when you
knew that they had to falsify or make up documentation to
accompany that survey, if you had intentions all along to
contact the lab?'' And basically he couldn't explain that away.
He just stated that he always intended to contact the lab. And
he was the fellow that in fact did contact the laboratory.
The 26th I believe those samples--the 19th of September the
samples were picked up. The 26th I believe they sent them in.
He contacted the lab on the 29th. He called, left a voice mail
for someone who was the liaison for the lab, and I believe he
retired the next day or so.
Mr. McInnis. But the Fish and Wildlife people didn't come
forward. This wasn't--
Mr. Malfi. No.
Mr. McInnis. OK, and let me ask one final question, then we
will move on. Once the unauthorized samples were submitted, was
there a reasonable chance that the bogus samples could have
worked their way into the survey's final data set? In other
words, when these biologists sent their planted evidence in,
what kind of control did they exercise over their sample? Could
it have gotten into the final results?
Mr. Malfi. Well, based on the '99 submission that was sent
in, that was an unauthorized submission, these were from a
bobcat pelt and they could not identify it. It was ``no qual''
because of the DNA testing, I guess because of the tanning
process that was used. And I am not a scientist, I am just
giving you, reiterating what the people that we spoke to told
us.
That survey, the ``no qual'' that came back on those
samples, was in fact included in the 1999 survey. When I spoke
to the director of the Montana lab, who was a co-director of
the National Lynx Survey, he stated that he had heard that
these people always stated that they were going to contact the
lab once the submissions came in, and then they would notify,
they were going to notify the lab and say that these certain
submissions were, you know, unauthorized or control.
He said, ``But the problem with that is, they had no
vehicle to do that.'' He said that once these results were put
together, that they would issue their survey, the results of
their survey for that year, and it was like a draft was going
to go to them and they would have time to make corrections and
it would go back. He said there was no procedure, no vehicle in
place for them to actually go back to correct that survey, so
it would have been made part of the national survey.
Mr. McInnis. Thank you.
Mr. Inslee?
Mr. Inslee. Thank you, Mr. Malfi. Obviously there is a
great interest in knowing what the motivation for these
individuals was. In other words, was it to try to boost the
number of lynx samples that were identified falsely, or in fact
was it in an effort to test the laboratory? And it seems to me
that is very distinct motivation.
So let me just ask you some questions. I don't have a lot
of time, so if you can keep your answers kind of short, I would
appreciate it.
Did any of these people ever say anything like, ``The
reason I did this was because, you know, these lynx are there
and I believe they're there, and we need to disclose it, and
it's just a handy way to do it,'' did any of them give you any
suggestion like that, that that was their motivation?
Mr. Malfi. None of the people that were involved in the
unauthorized submissions ever stated anything other than the
fact that they were doing this to test the lab.
Mr. Inslee. Now, I'm trying to piece this together, but at
least two of the people involved, as far as I can tell, did
tell someone in the supervisory chain above them that they had
done this, before Congress got involved. Is that right?
Mr. Malfi. There is some confusion in regards to that. Some
individuals who basically, like one of the re-interviews we did
of a Fish and Wildlife biologist who submitted an unauthorized
sample, stated in his first interview that he had authorization
or notified his supervisor. When we re-interviewed him, he
changed that story to the fact that he told his supervisor,
after the submissions, he had put them in.
Mr. Inslee. Let me stop you on that. On that particular
one, in other words, he said that he told his supervisor after
he sent in the submission but before somebody in Congress
raised a hue and cry about that. Did I get that right?
Mr. Malfi. I don't know. No, when he told her--well, before
Congress go involved, the submissions were put in, so basically
he would have told his supervisor. He submitted the samples in
September, I mean October of 2000, so if he told her prior to
that, it had to be sometime prior to October 2000. But he
changed that as to telling her that he submitted these after he
actually submitted them in.
And then other problems with the supervisor, that some did
not know what the protocols were, so when they were told by one
or two of these individuals that they were submitting a control
sample, their supervisor didn't realize that that was not in
the protocols. So they knew it, they didn't object to it, but
they didn't know that this was not part of the protocol.
Mr. Inslee. Well, maybe this is clear to everyone but me,
but let me try another crack at this. My understanding is, most
if not all of the individuals involved in this told somebody
else that they had submitted or were going to submit a control
sample before they learned of some investigation. Is that
accurate?
Mr. Malfi. Oh, yes. There was discussions among certain of
those individuals with others.
Mr. Inslee. Right. Now, the reason I ask that is, and I
think this is important because, you know, if these people were
consciously trying to phony up samples of lynx on this
important issue, you know, that is sort of equivalent of
homicide. And if they did it just to test the lab, it is
something less than that, so this is an important issue to us
on the Committee, I think.
It seems to me that if you were consciously trying to boost
the numbers of lynx that were found, you wouldn't tell your
supervisor about it. You wouldn't tell anybody about it. But
these people apparently did. Would that suggest to you that
they were trying to test controls as opposed to trying to boost
the number of lynx?
Mr. Malfi. I can't account for what motivated these people,
or being that no one told me anything other than they were
trying to test the lab, I couldn't make a statement that there
was other things involved. But looking at the evidence, one of
the interviews that we conducted were with supervisors of some
of the biologists, and there seemed to be a concern with the
biologists, that the scientists were looking at the scope of
the lynx habitat too narrowly, and that the biologists wanted
to broaden the scope of the lynx habitat.
There was discussions about this, and the supervisors told
a couple of the biologists--there was a few of them that were
involved. We have one that was involved in collecting the
samples up in the Northwest Trek, that was involved in
producing--in this discussion, and there is some question about
if there was the other person that was involved in the
submission.
Mr. Inslee. Just one more quick question, if I may, Mr.
Chair.
Did one of these people keep notes, duplicate notes that
disclosed that they were submitting a false or control sample?
Did I read that somewhere?
Mr. Malfi. I am aware that one of the Fish and Wildlife
Service biologists had a sheet. He had to falsify a sheet to
submit with the unauthorized samples, so he had the original
sheet which was actually part of--that he should have submitted
in with the samples, because there was no hits I believe on
them, and then he had another sheet that he wrote on, that said
that it was a sample that he submitted.
Mr. Inslee. Would that suggest to you that the guy kept
notes showing it was false, it was a control, that in fact he
was submitting it as a control, not to boost the lynx? I mean,
if I was going to falsify this to try to boost lynx, would
there be any reason I would keep notes showing that?
Mr. Malfi. There is two sides to that story. I mean, there
is two sides to it. One is, he was the only person that was in
control of those papers, and I specifically asked him that. I
asked him how could he prove to me through some other person or
through some other means that this was actually the intention
that he had.
And in the conversation I said to him, ``Hypothetically, as
an investigator, how do I know you didn't prepare these papers
after this investigation came up?'' He couldn't respond to
that. I'm not saying that he did do that. So that really
doesn't clarify the situation to me.
Mr. Inslee. Thank you.
Thank you, Mr. Chair.
Mr. McInnis. Ron, just real quickly before I move to the
next one, I just want some clarification. If these samples
would have been accepted, then it automatically broadens the
scope because it kicks into a second investigation, doesn't it,
or a second opening of the lynx study?
Mr. Malfi. My understanding of the protocols, that if lynx
appeared, lynx hairs appeared on scratch pads in areas where
there were not known to have lynx, that a second phase of an
investigation would kick off where they would do snow tracking,
other types of investigation to try and reveal if in fact there
was a lynx population in that area.
Mr. McInnis. Thank you, Ron.
Coach? I keep saying coach, out of respect.
Mr. Osborne. Thank you. Thank you, Mr. Chairman.
Let me clarify this a little bit. There were three agencies
and seven employees involved, is that correct, directly?
Mr. Malfi. That is correct.
Mr. Osborne. Were there people beyond those seven who
apparently either knew of, condoned, or somehow were involved
in this whole activity?
Mr. Malfi. There were other people that basically were
aware that the submissions had happened or were going to be
sent in. They didn't actively take part in either the gathering
of the hairs or the actual submissions. Some of them knew about
it and didn't realize that this was not part of the protocols.
Mr. Osborne. Would you say that there were others who knew
about it, who did know it wasn't part of the protocol?
Mr. Malfi. That is correct.
Mr. Osborne. And would you have a rough idea how many there
would be?
Mr. Malfi. I know right off the top of my head of one who
was a supervisor for the first--the Washington State was the
first sample that was submitted in '99. That person's
supervisor found out about that later on, and realized it was
an unauthorized submission, but felt that basically due to the
fact that it was bobcat hair that was sent in and it wasn't
identified, that there was no problem in it.
Mr. Osborne. Well, I am kind of a stranger to government. I
haven't been here very long. But it seems like most
organizations I know about, and the past organization I was
involved with, if you violated protocol or if you knowingly
approved of someone or did not turn somebody in who violated
protocol, you were directly implicated and you were
responsible. I may be asking an unfair question, but do you
feel there are others beyond these seven who bear some
responsibility for what happened?
Mr. Malfi. Basically, we had a short time in which to do
this investigation, and we concentrated on the issues at hand.
We looked closely at the people that were involved in the
submissions of these unauthorized samples and a little bit of
the surrounding area. We didn't broaden the scope of this
investigation to encompass everybody that was involved or to
see how much involvement they had and what their motivations
were, things of that nature.
Mr. Osborne. Would it be possible for you to provide a list
of individuals that you felt were knowledgeable to the
Committee, and not necessarily implicate them in terms of what
their motivation was, but simply people who were aware beyond
the seven individuals? Would you be able to provide that to us?
Mr. Malfi. Yes, I believe that we could do that in private,
yes.
Mr. Osborne. I would appreciate that. And again, you know,
I guess in this politically correct society we are not supposed
to pass judgment on anybody, but I can't imagine in corporate
America--or maybe we can now with Enron--or even in college
athletics, which sometimes has a black eye, that something of
this type could be done and verbal counseling would be the only
remedy. It is just incomprehensible to me, because in most
areas that I know of this would be grounds for dismissal,
regardless of motivation.
Let me just ask you one or two other brief questions here.
What was the attitude of agency biologists toward the DNA lab
at the University of Montana? Do you know what that was?
Mr. Malfi. Their feelings toward the lab in Montana?
Mr. Osborne. Right.
Mr. Malfi. Some of the field biologists that we spoke to,
and the reasons that these people stated, that they gave for
doing this, was that they felt that the lab may not be able to
correctly identify lynx here. So I guess they felt that the lab
would have a problem or wouldn't be able to accomplish what the
survey was setting out to do.
Mr. Osborne. And one last question: Did any of the
concerned employees, to your knowledge, attempt to contact the
Montana lab or contact the U.S. Fish and Wildlife forensics lab
in Ashland, Oregon to address their concerns?
Mr. Malfi. What I understand, this is from interviewing the
director at the Montana lab, was that early on in the survey he
had heard some rumors that some of the biologists may be
suspect of some of his protocols or the ability of the lab to
perform this function.
He said that he told the individual that, you know, if
there was a concern, that he would walk anybody through and
show them the protocols and explain to them how they did the
testing. He says that individual never came back to them to
take him up on his offer.
He also stated that he never heard from anybody of an
official status, from either Fish and Wildlife or the Forest
Service, that had a concern about that, you know, had a concern
about the lab not being able to perform its job. And he said if
someone would have come to him, he says he would have walked
him through his protocols.
I mean, like I said earlier, I am not a scientist, but the
individual I spoke to is. He is the director of that lab. And
he said that he would have had no problems, you know,
explaining these protocols, and felt that they would stand up
under scientific scrutiny.
Mr. Osborne. Thank you, Mr. Chairman. I yield back.
Mr. McInnis. Mr. Gallegly?
Mr. Gallegly. Mr. Chairman, thank you for yielding. First
of all, I apologize for getting back. I have just come from a
meeting with the President of Luxembourg, or the Prime Minister
of Luxembourg, as the Chairman of the Subcommittee on Europe. I
concurrently have a markup in Judiciary. So I would ask
unanimous consent that I have an opening statement placed in
the record.
Mr. McInnis. Without objection, so ordered.
Mr. Gallegly. Thank you, Mr. Chairman.
[The prepared statement of Mr. Gallegly follows:]
Statement of The Honorable Elton Gallegly, a Representative in Congress
from the State of California
Mr. Chairman, State and federal biologists committed fraud by
submitting false hair samples as part of the National Interagency
Canada Lynx Survey. Interior Department Inspector General Earl Devaney
stated in a report last week that the Fish and Wildlife Service failed
to provide ``meaningful punishments'' for the Fish and Wildlife
employees who were involved in submitting the false samples.
Not only weren't they punished, they were rewarded with merit
raises for their work on the survey. To make matter worse, a cash award
was given to the employees involved. Mr. Devaney called this ``an
incredible display of bad judgment.'' I call it outrageous.
The scientists at the lab at the University of Montana had no way
of knowing that the lynx hair samples they had received were not valid
and the false data could have easily been included in the study's final
conclusions. Consequently, this may have had an impact on the
management of our federal lands.
The designation of habitat where none exists can have a significant
negative impact on the lives of farmers, businesses, and families who
depend on the land in the habitat area. In addition, it can have an
even greater detrimental impact on the economy.
Mr. Chairman, the Endangered Species Act was meant to protect and
restore threatened and endangered wildlife. However, it is clear that
the act also empowers overzealous bureaucrats to violate scientific
protocols to further their agendas and pay no penalty for it. In such
cases, both the environment and the public's faith in the government
suffers.
______
Mr. McInnis. Thank you. Mr. Udall?
Mr. Tom Udall. Thank you, Mr. Chairman.
One of the issues here that I think that you have talked
about and touched on a little bit, that I would like to explore
with you, is if these samples were accepted as true samples, I
want to explore with you a little bit of what the result would
have been.
There is some suggestion out there that if they were
accepted as true samples, that somehow this would have been an
automatic shutdown of areas, that there were going to be very
drastic consequences as a result of this. And so my question
is, isn't it true that even if these samples were accepted,
that what we are talking about in order to have any drastic
land use actions taken is another two or 3 years of additional
studies where you do a snow tracking study, you do a three-
level study, you would do all of the things that really are
necessary to make further determinations on whether a species
is actually in the area?
Mr. Malfi. Yes, that is correct.
Mr. Tom Udall. The other thing I want--
Mr. McInnis. Would the gentleman yield?
Mr. Tom Udall. Well--
Mr. McInnis. I will give you some additional time.
Mr. Tom Udall. Can you give me--OK--can you give me
additional time?
Mr. McInnis. Yes, I will give you a few seconds, Mr. Udall.
Mr. Tom Udall. Go ahead.
Mr. McInnis. Let me ask the question--
Mr. Tom Udall. I have such limited time, Mr. Chairman, but
if you are going to--
Mr. McInnis. Well, now you are taking away from your own
time.
Ron, just to finalize that question, who conducts the
additional study, that second stage of the investigation, for
example? Could it go back to the same biologist that conducted
the first investigation?
Mr. Malfi. That is correct, it possibly could, yes.
Mr. McInnis. Thank you.
You may proceed with your additional time, Mr. Udall.
Mr. Tom Udall. And isn't it also true that by having
additional study, that further levels of scientists and others
could begin to look at that and have a review process on that,
if some drastic actions like automatic shutdowns in an area
were going to occur?
Mr. Malfi. I am really not the one to, because I am not an
expert on what the follow-up protocols were going to be. The
only thing I do know is what you said earlier was correct, that
if these samples would have gone through, this would have
kicked off the second phase of an investigation, and that they
would have done some snow tracking and other things to, I
guess, determine if there was a lynx population there. From
what I understand, it could last maybe 2 years, they could go
in in the winter, look for snow tracking. If they didn't come
up with anything, or did, they would maybe put out the pads
again. But we really didn't delve into, other than the fact
that these samples, if they went through, would kick off
another phase of an investigation.
Mr. Tom Udall. OK. Thank you.
Mr. Malfi. You are welcome.
Mr. Tom Udall. One of the, I think, very unfortunate
results that has come out of this, and it is part of our
system, when we have the press get into things and you look for
the worst possible case. And we need to do that, and I think it
is important to explore, but I think we are at the point now
where we ought to be trying to make the record clear and seek
the truth.
And it seems to me that to cast aspersions that all of the
scientists in the government do this kind of thing, to talk
about this being the tip of the iceberg, that this is something
rampant throughout the Federal Government, did you see this as
some kind of widespread problem throughout the Federal
Government with its scientists, that you are telling us about
here today?
Mr. Malfi. We looked at this one isolated investigation. We
didn't broaden our scope to see if it was a system problem. We
just concentrated on the issue, the investigation that we had
at hand.
Mr. Tom Udall. Was there anything that you saw in your
investigation that would lead you to believe that this is a
widespread problem?
Mr. Malfi. It is hard to reach that conclusion because I
didn't do an investigation with that in mind. I basically did
it to concentrate on the issue at hand.
Mr. Tom Udall. But usually you are in a position, aren't
you, when you do an investigation, to make some kind of
determination like that so that an additional study, additional
GAO study can be opened up, or others can follow paths and
figure things out?
I would think that is a kind of a judgment. Although you
don't make it in the conclusion, you would clearly, your group
and your supervisors, if you thought there was a big problem
out there, wouldn't you be telling people that and saying, you
know, this isn't an isolated incident, we believe it is a much
bigger problem?
Mr. Malfi. In order to see if this is a systemic problem,
we would have to do a lot more investigation and broaden the
scope, not only of the lynx but into other practices in other
studies, and we just didn't do that, based on the time
constraint, and that wasn't what we were requested to do at
that time.
Mr. Tom Udall. OK. Well, I know, and I can understand that
you don't want to speculate on that, and that we are at a part
in this process where we have other witnesses that may well be
able to talk about that. So thank you very much, and Mr.
Chairman, thank you for the additional time. I very much
appreciate it.
Mr. McInnis. Mr. Duncan?
Mr. Duncan. Mr. Chairman, first let me thank you and
Chairman Hansen for calling this hearing, and I want to say
that I agree with Chairman Hansen that this does raise into
question other facts, reports, studies that have come out, that
many people have felt have shown a very strong bias toward
greatly limiting or restricting the public's access to many of
our national parks and public lands of all types. And so I
think this is a very important hearing, and something that we
really need to look into.
And contrary to something that our friend Mr. Inslee said a
few minutes ago, he said something to the effect that this
showed that the system was working and that it was set up in a
way that this would be brought out. I think it is just a fluke
that we discovered this at all, because it apparently was
reported by a man who was retiring the next day.
I believe that common sense tells that if he had not been
retiring, and he would have faced ostracism or repercussions if
he had reported this type of thing if he still had several
years of employment left, it probably never would have been
reported. We are just fortunate that he was near his
retirement, I suppose.
But what really boggles my mind is the fact that some of
these employees involved were given bonuses after this had come
out. Coach Osborne mentioned about a violation of protocols,
and that is the polite way to put it, but to falsify
information of this significance, which could have led to some
pretty drastic actions being taken, I think I agree with him
when he said a lot more than verbal counseling should have
taken place.
The Washington Times had an article this past Saturday, and
the Inspector General for the Interior Department--or the story
said the employees were given a salary bonus after it was
discovered they had violated the study protocol, and the
Inspector General said, ``Awarding the involved employees with
monies and specifically praising their work on the lynx study
so soon after the incident is not only an incredible display of
bad judgment, but also highlight's FWS's''--Fish and Wildlife
Service's--``excessively liberal award policy and practice
which the OIG has criticized in the past.'' And that is a
statement by Earl DeVaney, the Inspector General of the
Interior Department.
There seems to be--you know, the Federal Government has
many, many, many good, dedicated, hardworking employees, but it
seems to also have many employees who seem to feel or know that
they can get away with almost anything, and that they don't
suffer repercussions as they would if they were in the private
sector. And I think that a lot of us--that there needs to be a
lot more concern about that.
I do have one question that the staff has asked that I ask,
and I think it is an important question. What was the basis for
the biologists not trusting the validity of the lab? Did they
have some basis for mistrusting the lab?
Mr. Malfi. One of the things that seemed to be a common
thread was the Weaver study. They felt that the fact that the
Weaver study in '98 came out with hits in areas where there was
never any lynx known to be before, supported their belief that
there was probably lynx in that area. Then when they got their
1999 results back on the survey, which were all negative, I
guess it started to raise some concerns about the--
Mr. Duncan. So they were going to do whatever they needed
to do to support that earlier study.
Mr. Malfi. Well, I am not saying that.
Mr. Duncan. But I understand that Dr. Weaver later recanted
or changed some of his opinions from his '98 study.
Mr. Malfi. Right. At the time when the results came out,
were furnished to them, of their '99 survey, they didn't know
at that time that the Weaver study was tainted, so they
believed that it was an accurate study. How much concern? I
have heard both sides of the coin on that.
Some said that there was--the Weaver study raised a lot of
concern. I have heard the fact that when the results of the
Weaver study came out, that that raised concern because
everyone knew that there were supposedly no lynx there, and all
of a sudden the Weaver study has it, so that drew some people's
concern about the Weaver study.
The fact that the Weaver study had hits in it in '98, they
didn't have hits in '99, raised concerns about their '99
survey.
Mr. Duncan. Mr. Chairman, my time is up. Let me simply say
that we may need, if these agencies are not going to take
appropriate action to reprimand people who falsify information
and do other things that they definitely shouldn't do, perhaps
we should include in legislation at some point requirements
that these agencies discipline, in a significant, meaningful
way, people who do things like this.
Thank you very much.
Mr. McInnis. Well, Mr. Duncan, they did take action. They
gave them bonuses.
Mr. Walden?
Mr. Walden. Thank you very much, Mr. Chairman. I want to
just put this back in focus on your report, make sure I
understand it clearly. The people involved knew they did not
have the authority to make these submissions, correct?
Mr. Malfi. Correct.
Mr. Walden. There were other alternatives for testing the
lab and the protocols.
Mr. Malfi. They knew that there was other alternatives.
Mr. Walden. And they knew that, correct?
Mr. Malfi. Correct.
Mr. Walden. There was no procedure whereby the biologist
who submitted the samples would receive preliminary data
results back.
Mr. Malfi. From the lab?
Mr. Walden. From the lab.
Mr. Malfi. That is correct.
Mr. Walden. And so they, according to your report, they
could never have known what happened to the data they
submitted. Well, not never known. Let me rephrase that, because
my point is, they submit this, it goes off into the lab and
they don't get a preliminary report, so they don't know. They
have sort of lost control of it at that point, haven't they?
Mr. Malfi. That is correct.
Mr. Walden. All right. And then you say none of the other
biologists who made unauthorized submissions disclosed their
actions until after the Forest Service commenced its
investigation.
My question is this, because I am not here to apologize for
their actions. I find it reprehensible what these people did
and how the agency has conducted itself. It is almost akin to,
I remember the old ABSCAM deal. Remember Judge Kelly, after he
took the money, I think he was down in Florida, patted himself,
said, ``Does it show?'' And then when asked, when he got
caught, he said, ``Oh, I was conducting my own investigation.''
You know, it is equivalent to having Mohammed Attah, if he
had gotten caught, say, ``Oh, I was just checking airline
security.'' I mean, isn't the criminal mind like that in a way?
After you are caught, you suddenly have a different view of
what you were doing?
You don't have to comment on that, but my question is this:
What are the costs? How much have taxpayers spent for this
fiasco? Did you look at any of that?
Mr. Malfi. No, we didn't look into the cost of it.
Mr. Walden. Is Dr. Weaver doing any other work for any
other agency?
Mr. Malfi. That I don't know of.
Mr. Walden. Why are the names not public? Is that a
prohibition somewhere? Do we know who these biologists are?
Mr. Malfi. Well, it has been a long-standing policy of GAO
that we don't put names of individuals in the public domain.
Mr. Walden. Were there any laws broken by these
individuals?
Mr. Malfi. I would have to look and see. I didn't look into
that end of it, to see if there was criminal prosecution or if
there was Federal laws that were violated.
Mr. Walden. Is that something the agency would look at?
Mr. Malfi. Yes, the agency would look into that. The IG's
office.
Mr. Tom Udall. Would the gentleman yield?
Mr. Walden. If I can get more time.
Mr. Tom Udall. Mr. Chairman, just to clarify a point here,
I mean, my understanding is, on the point you are asking, the
Interior Department IG report was released on March 1, 2002,
and stated that ``We found no evidence of criminal intent and
prosecution was declined by the Justice Department. However, we
did uncover a pattern of bad judgment, an absence of scientific
rigor, and several troubling policy issues. In addition, parts
of the story told by the FWS biologists stretch credibility.''
That is to give you a little information.
Mr. Malfi. Right. That helps. Thank you. I appreciate that,
and I will, I will ask the agency about that.
I guess I get back to your map too showed just Washington
State, but my understanding is as part of the proposed listing
of the lynx as threatened species, they listed 16 States
including my own in Oregon, even though in 96 years there have
only been 14 sightings, potential sightings of lynx. And so
this isn't necessarily something you are doing, but to make it
appear as though we are not affected, I can tell you on the
ground we are affected because of lynx habitat issues related
to all this discussion about whether or not there is lynx.
Does the GAO have any further investigative ideas for us?
Do you need to go further, based on what you found?
Mr. Malfi. I believe the issue area is looking to certain
policies and procedure issues in regards to not just the lynx
case, but certain policy and issues I think that are conducted
by maybe the Forest Service and the Department of Interior. We
are from the Office of Special Investigations. We were called
in to look at a specific case.
Mr. Walden. I understand. I understand. All right.
Well, as you can imagine, Mr. Chairman, out in our part of
the world, when you start with this base science, every
decision from there on is predicated on it, and there is
virtually no way to ever go back and check it unless you have
outside peer review. And that is where I wish my colleague and
friend from Washington were still here, Mr. Inslee, because if
there was ever a case for having outside peer review of data,
this is it, and the situation in the Klamath Basin screams for
an independent peer review to catch things like this and the
decisions that were made in the Klamath Basic, which the
National Academy of Sciences has since said were not predicated
on sound science.
Thank you, and thank you for the work your folks have done.
Thank you, Mr. Chairman.
Mr. McInnis. Mr. Walden, I might add that I have the names
of the individuals, which I would be happy to supply to you. I
have received them from other sources outside the agency, and I
intend to enter them into the record, commend them for their
bonuses, maybe.
Mr. Tancredo?
Mr. Tancredo. No questions, Mr. Chairman. I hope we can get
to the agencies, for which I have many questions.
Mr. McInnis. Mr. Gilchrest?
Mr. Gilchrest. Thank you, Mr. Chairman.
Just briefly, do you have a sense--I am trying to wrestle
with the issue. Being from Maryland, I don't get heavily
involved in the issues that take place in the Western States,
although I hope as we go through this process, as Mr. Walden
has said, talking about peer review of a great deal of
research, good peer review, so that we can figure out a way to
preserve habitat for us and the lynx. I would hate to be the
last generation to know that there were lynx somewhere out
there in the distant past.
The samples that were submitted to the lab, from what you
understand now, what was the purpose for submitting those
samples to the lab?
Mr. Malfi. Of all the samples?
Mr. Gilchrest. The biologists submitted these unauthorized
samples. The lab didn't know they were unauthorized, I guess.
Mr. Malfi. That is correct.
Mr. Gilchrest. What was the purpose of the biologists
submitting the unauthorized samples to the lab?
Mr. Malfi. Well, we didn't uncover what their exact
motivation was. They told us it was to test the laboratory.
There are other factors that could lead to, you know, possibly
the other side of the coin. We don't know what their motivation
was. We just looked at the facts and tried to get the evidence
together as to exactly what happened.
Mr. Gilchrest. You said earlier, at least I thought you
said that the possible, one of the possible outcomes of these
unauthorize submissions would have been an expansion of the
study area for the habitat of the lynx.
Mr. Malfi. That is correct. From what I understand, the
protocols for the National Lynx Survey is that if hairs were
found in an area that there was no known lynx, that this would
kick in the second phase of an investigation that would
encompass things like snow tracking and other means.
Mr. Gilchrest. This might be a question for the next panel,
but is there, if you don't find any hair samples, let's say,
for example, and they did not or would not submit unauthorized
samples to the lab, was there any other method that your are
aware of that they could have expanded the study area for the
habitat for the lynx without doing what they did?
Mr. Malfi. You mean, you are saying is there anything else
that would kick the second phase of a larger investigation in,
except for the--
Mr. Gilchrest. Well, not an investigation necessarily, and
this might be for the next witness. I was just wondering, do
biologists have an alternative approach to expanding an area
for study, rather than finding samples of what they want to
study there?
Mr. Malfi. I don't know that.
Mr. Gilchrest. Thank you, Mr. Chairman.
Mr. McInnis. Mr. Pombo?
Mr. Pombo. Thank you, Mr. Chairman. Just to follow up on
Mr. Gilchrest's question, the area was being studied.
Mr. Malfi. That is correct.
Mr. Pombo. You know, they were studying the area. What they
were doing was, they were attempting to justify that the lynx
were there. I know you are not coming to that conclusion--
Mr. Malfi. Yes, I can't go to that conclusion.
Mr. Pombo. --but they were studying the area. It is not
that they were just trying to be good soldiers and look at a
different area. They were studying it.
Let me ask you this. You said that several or a couple of
these guys told their supervisors that they had submitted false
samples. Why did their supervisors not do anything about it at
that point?
Mr. Malfi. From what I can remember, one of the supervisors
felt that the '99 sample, it was bobcat hair, came back as ``no
qual,'' I guess in their mind they justified that it didn't
really do anything with the survey one way or the other, so
they decided not to make it known.
Some of the other people that were at the time in a
supervisory position did not know that--and these people didn't
go in and ask for permission, like ``Can I do this?'' It was
like, ``I'm going to do this,'' and these people weren't
familiar with the protocols or the survey, and they assumed
that this was just--
Mr. Pombo. Let me stop you. Did they say, ``I'm going to do
this'' or ``I did this''?
Mr. Malfi. Well, in one of the cases the person, the
supervisor, did not know when it took place. But in recounting
her statements, what the fellow told her was that ``I am
sending these samples in,'' so you have to assume that maybe it
was before he sent them in.
When we spoke to that person, they recanted and said, ``I
never asked for permission, and I told my supervisor after I
sent them in.'' So we went back to the supervisor. They still
were unclear as to when it took place. But the other person
that stated that they advised their supervisor, that person
didn't know about the protocols.
Mr. Pombo. They didn't know about the protocols, so from
what you are telling me, I would assume that they weren't sure
if it was OK to submit false data?
Mr. Malfi. That is correct. They didn't know--
Mr. Pombo. You are kidding, right?
Mr. Malfi. Excuse me?
Mr. Pombo. You are kidding, right?
Mr. Malfi. No, they did not realize that a false submission
was not part of a protocol. Some protocols, from what I
understand, have built in, at the beginning of the survey, ways
that you can send in a control sample to the laboratory.
Sometimes you can send them in, sometimes you can't, but
whatever the situation is, from what I have been told, it has
to be established up front.
Protocols for this survey, it was established that there
were going to be no test samples sent in. Some other surveys
may allow for test samples. The person that was in a
supervisory position wasn't aware of the protocols, that you
couldn't send them in, so therefore when they heard that the
employee was sending it in, it didn't raise a red flag to them.
Mr. Pombo. I find that interesting, that the supervisors
didn't raise a red flag when they said that they were
submitting false samples. But as part of this you stated that
you are not aware of any reason why they would have been
testing the lab, that there were no problems that you are aware
of with the particular lab that would lead them to believe that
they should proceed with this kind of false sample.
Mr. Malfi. We didn't pull back all the layers concerning
the lab itself. What we did was, we interviewed the people that
were involved in these submissions and some of their
supervisors, and we found that there was a tone amongst some of
these biologists that they had some skepticism about the lab.
When we spoke to the people at the lab, we raised this, and
they were aware of it.
And they said, ``Look, bottom line is, if anybody really
had a problem, I would have walked them through the stages, put
their concerns at ease. I have tested these things. I know that
the protocols are accurate. No one came to me and asked me to
do this, nor did anybody officially from either agency come to
me and say, hey, we hear there's a problem. Let us, you know,
put this at ease and walk us through the system.''
So were there any legitimate concerns about the lab being
not able to do their work? We didn't look into that. We didn't
look into, you know, how good they were able to do their job.
This is based upon what people told us that were involved in
the scenario.
Mr. Pombo. Thank you, Mr. Chairman.
Mr. McInnis. Thank you. Mr. Malfi, Mr. Sullivan, I
appreciate the time you have given us today. In consideration
of the quick period of time you had to put this investigation
together, I think you have done a commendable job,so thank you
for your testimony.
Mr. Malfi. Thank you.
Mr. McInnis. We will now call our second panel up. The
Honorable Mark Rey, who is the Under Secretary of the USDA,
Natural Resources and Environment; and Steven Williams, Ph.D.,
Director, U.S. Fish and Wildlife Service, Department of
Interior. And by the way, for the panel's interest, Mr.
Williams has been on the job for exactly 1 month, so this is
probably his first appearance before our panel. I offered him
some Tylenol but he thought he could handle it. They will also
be accompanied by Tom Thompson, who is the Deputy Chief,
National Forest System.
Mr. Rey, why don't you start us out, and then we will go to
Mr. Thompson.
STATEMENT OF MARK REY, UNDER SECRETARY FOR NATURAL RESOURCES
AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE, ACCOMPANIED BY
TOM L. THOMPSON, DEPUTY CHIEF, NATIONAL FOREST SYSTEM; AND
STEVEN A. WILLIAMS, DIRECTOR, FISH AND WILDLIFE SERVICE, U.S.
DEPARTMENT OF THE INTERIOR
Mr. Rey. Thank you. Mr. Chairman and members of the
Committee, and thank you for the opportunity to appear today
along with Tom Thompson, to my left, and Dr. Kevin McKelvey, an
research scientist at the Forest Service's Rocky Mountain
Research Station. Dr. McKelvey will appear on a later panel,
but he will also be available to assist us in responding to
questions.
I would like to defer initially to Mr. Thompson to review
the circumstances that bring us here today, and then I will
offer a few brief concluding remarks prior to Mr.Williams, so
as to not unnecessarily delay the expected horsewhipping.
Before, however, we turn to Mr. Thompson, I suppose you were
going to tell me you have got a vote here.
[The prepared statement of Mr. Rey follows:]
Statement of Mark Rey, Under Secretary for Natural Resources and
Environment, U.S. Department of Agriculture
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to appear before you today along with
Mr. Tom Thompson, Deputy Chief for National Forest Systems of the
Forest Service and Dr. Kevin McKelvey, Research Scientist at the Forest
Service's, Rocky Mountain Research Station. Dr. McKelvey will also
offer testimony on a later panel.
I would like to defer to Mr. Thompson to review the circumstances
that bring us here today. Then I will offer a few brief, concluding
remarks so as to not unnecessarily delay the expected horsewhipping.
Mr. Thompson, Dr. McKelvey, and I will be available to respond to
questions.
The events described by Mr. Thompson have engendered considerable
consternation. They present us with specific management challenges that
we will meet. More broadly, however, they raise two serious questions
which go beyond the facts of this particular event.
First, the events described by Mr. Thompson achieved such resonance
because they apparently ratify a suspicion held by some about the use
of scientific information in resources decision-making--that is,
information is manipulated under the guise of dispassionate expertise
to achieve desired, or even predetermined, outcomes. This did not occur
in this instance, but the rush to judgment that it did should serve as
a warning signal to us.
Second, these events highlight a myth that has grown up in the
midst of natural resources decision-making. The myth is that ``good
science'' can, by itself, somehow make difficult natural resource
decisions for us, and relieve us of the necessity to engage in the hard
work of democratic deliberations that must finally shoulder the weight
of those decisions.
In the case of endangered species issues, this myth has been, in my
opinion, carried to an extreme. There is a perception that a limited
number of people, with similar or identical expertise, and without much
outside scrutiny, use sometimes extremely limited scientific data--even
though they may be the best data available--to render decisions. These
decisions trigger legally automatic results that, increasingly, have
sweeping social and economic impacts.
It would be counterproductive to dwell on the facts of this
specific case without trying to learn how to use science more wisely in
the complex political milieu that surrounds issues like endangered
species recovery. Rather than meeting out punishment, the broader
management challenge is to enlist biologists as partners in developing
policy and gaining congressional and public support for federal land
management decisions.
A second challenge is one that we must share--that is, to review
and streamline the entire natural resources decision-making process,
with scientific accuracy, accountability, accessibility, trust-
building, and efficiency as our goals. This will also give higher value
to the knowledge of scientists as we apply their expertise in real-time
decisions.
These are problems that the Chief of the Forest Service and I have
acknowledged before this committee, and are committed to working with
the committee to resolve.
Thank you.
______
Mr. McInnis. Well, what we are going to do is, we don't
have to leave for 10 minutes, but we have a 15-minute vote
following the first vote, which means when we do leave we are
going to be gone about 25 minutes. So if you could keep it
within our 5-minute time allotment, we can cover both of you
and then recess for 20 minutes or so, and then come back and
start again. So if we can keep it as brief as possible, it is
helpful.
Mr. Thompson?
STATEMENT OF TOM L. THOMPSON, DEPUTY CHIEF, NATIONAL FOREST
SYSTEM
Mr. Thompson. Thank you, Mr. Chairman and members of the
Committee, for this opportunity to appear before you today to
talk about the National Canada Lynx Survey. My name is Tom
Thompson, Deputy Chief, National Forest System, Forest Service.
In late September 2000, a Forest Service employee called
the lynx survey coordinator to report that he and some co-
workers on the Gifford Pinchot National Forest had sent an
unauthorized hair sample to the survey coordinator. The stated
purpose was to test the DNA process for detecting lynx.
A subsequent investigation by the Forest Service revealed
that three of the agency's employees were involved. The
investigation also determined that two additional unauthorized
samples of lynx hair were submitted by two U.S. Fish and
Wildlife and two Washington State Department of Fish and
Wildlife employees, and labeled as having come from the
Wenatchee National Forest.
These actions have threatened the credibility of the Forest
Service and other science-based agencies. Under the leadership
of Chief Dale Bosworth, the Forest Service has acted
aggressively to sort out what happened, to identify problems,
to restore its integrity, and to assure that information
associated with the National Lynx Survey is sound.
Because of its conservation status and a proposal to list
lynx as threatened species in 1998, there was a group of
internationally recognized scientists specializing in lynx
biology and ecology that did an analysis and summarized the
best scientific information about lynx. With their knowledge,
they put together four separate documents, a Lynx Science
Report, a Lynx Conservation Assessment, a Lynx Conservation
Agreement, and Lynx Biological Assessments.
The Fish and Wildlife Service issued a final rule to list
the lynx as threatened under the Endangered Species Act on
March 24th, 2000. Primarily, this was because of the inadequacy
of existing regulatory mechanisms, specifically the lack of
guidance for lynx conservation in our Federal land management
plans.
Since then, planning efforts have begun to incorporate the
lynx conservation measures into forest plans. All the
amendments and revisions propose management direction for lynx,
and are based upon conservation measures recommended by the
Lynx Conservation Assessment and Strategy.
The National Lynx Survey is being used to document current
distributions of lynx, and will be used to refine habitat
mapping, because we recognize that all potential habitat is not
occupied. In 1999, the Forest Service began this 3-year
nationwide survey of habitat to better identify the presence or
absence of lynx or lynx populations. Dr. McKelvey will describe
this effort on the next panel.
Following the Forest Service investigation, a number of
actions have taken place. Forest Service employees responsible
for submitting the unauthorized samples, except for the retired
employee, have been made aware of the seriousness of their
actions. None of the employees involved in submitting
unauthorized samples from the three agencies have been allowed
to participate in any more lynx survey efforts.
When Chief Bosworth became aware of the unauthorized
samples, and in light of the continuing questions about the
survey, he asked the USDA Inspector General to look more fully
into the allegations of the unauthorized samples. That ongoing
investigation, which is still ongoing, may ultimately indicate
that further action is warranted by agency managers.
The Chief recently directed that the already existing
Forest Service Code of Scientific Ethics be applied to all
Forest Service employees, agency partners, and cooperators who
participate in research funded with Federal research
appropriations. The administration and the Congress have been
adamant that information collected and used by the Federal
Government should be top quality. The importance of
professional conduct and ethical behavior is being emphasized
with employees at meetings and in training modules.
The research scientists did not include the unauthorized
hair samples in survey data. Based on these factors, the
research scientists believe that they can verify the scientific
authenticity of the National Lynx Survey. Let me be clear: The
unauthorized samples have been excluded from the survey.
In summary, Mr. Chairman, we know unauthorized samples were
inappropriately submitted by employees. We know that the
integrity of the National Lynx Survey has been questioned.
However, the scientists believe that the study remains valid.
No land management plans have changed because of the
unauthorized lynx hair samples. The Forest Service Code of
Scientific Ethics now applies to all Forest Service employees,
partners, contractors, that work on Forest Service research.
We regret this incident and the actions of a few agency
employees. Although the unauthorized samples were detected and
did compromise the validity of the lynx survey, such situations
call into question the Forest Service integrity. The Forest
Service is a science-based organization, and any efforts to
collect information and data and communicate that resource
information must be conducted to professional and ethical
standards of the highest order and within established
scientific protocols.
Mr. Chairman, that concludes my statement.
[The prepared statement of Mr. Thompson follows:]
Statement of Tom L. Thompson, Deputy Chief, National Forest System,
U.S. Department of Agriculture
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to appear before you today to talk
about the National Canada Lynx Survey. My name is Tom Thompson, Deputy
Chief National Forest System, Forest Service. Today, I am accompanied
by Kevin McKelvey, Research Scientist at the Forest Service's Rocky
Mountain Research Station, who developed protocols for the National
Lynx Survey and who will testify on a later panel.
In late September, 2000, a Forest Service employee called the lynx
survey coordinator to report that he and some co-workers from the
Gifford Pinchot National Forest sent an unauthorized lynx hair sample
to the survey coordinator. The stated purpose was to test the DNA
process for detecting lynx. A subsequent investigation by the Forest
Service revealed that three of the agency's employees were involved.
The investigation also determined that two additional unauthorized
samples of lynx hair were submitted by two U.S. Fish and Wildlife
Service and two Washington State Department of Fish and Wildlife
employees, and labeled as having come from the Wenatchee National
Forest. A number of other employees of the three agencies knew about
the activities but did not report them.
These actions have threatened the credibility of the Forest Service
and of other science based agencies. Under the leadership of Chief Dale
Bosworth, the Forest Service has acted aggressively to sort out what
happened and identify problems, to restore its integrity, and to assure
that information associated with the National Lynx Survey is sound.
Today, I would like to give you background about the lynx, describe the
lynx conservation efforts underway, and describe the design of the
National Lynx Survey. Lastly, I will touch on the ongoing
investigations and actions that have been taken to date.
Background
The Canada lynx is a medium sized member of the cat family, noted
for having long ear tufts and large feet that are highly adapted for
hunting in deep snow. Lynx feed primarily on snowshoe hares, a type of
rabbit.
The historical range extends from Alaska across much of Canada,
with the southern extensions into parts of the northwestern United
States, the Great Lake states, and New England. Within the contiguous
United States, the distribution of lynx is associated with subalpine
coniferous forests in the West and primarily mixed coniferous/deciduous
forests in the Great Lakes and East. Lynx habitat occurs primarily on
National Forest System and Bureau of Land Management lands in the West,
and lynx has been a rare species for several decades.
Lynx Conservation
Because of its conservation status, and a proposal to list lynx as
a threatened species in 1998, land managers and scientists realized
that there was a pressing need to know more about the ecology of the
lynx. A group of internationally recognized scientists specializing in
lynx biology and ecology did an analysis and summarized the best
scientific information about the lynx. A team of Forest Service, Bureau
of Land Management, Fish and Wildlife Service and National Park Service
managers and researchers convened to identify how to better manage for
the conservation of lynx on federal lands. The effort also included
representatives of state fish and wildlife agencies. They reviewed the
state of knowledge on lynx and developed a management strategy for
federal lands based on the best available science. This effort has
produced several important documents: the Lynx Science Report, Lynx
Conservation Assessment and Strategy, Lynx Conservation Agreement, and
Lynx Biological Assessment.
The Fish and Wildlife Service issued the final rule to list the
lynx as threatened under the Endangered Species Act on March 24, 2000,
primarily because of the inadequacy of existing regulatory mechanisms,
specifically the lack of guidance for lynx conservation in federal land
management plans. On February 7, 2000, and August 22, 2000,
respectively, the Forest Service and the Bureau of Land Management
signed conservation agreements with the Fish and Wildlife Service to
guide interagency lynx conservation efforts through 2004. Among other
actions, under the Forest Service-Fish and Wildlife Service Lynx
Conservation Agreement, the Forest Service agreed that Forest Plans
should include measures necessary to conserve lynx for all forests that
have lynx habitat. Development of such measures would include
consideration of the Lynx Science Report, the Lynx Conservation
Assessment and Strategy and the Fish and Wildlife Service's listing
decision. Any necessary changes in these plans would be made through
amendment or revision.
Land Management Plans
Planning efforts have begun to incorporate the lynx conservation
measures into Forest Plans. Forest Plan amendments or revisions are
scheduled for national forests in Washington, Oregon, Idaho, Montana,
Wyoming, Utah, Colorado, Minnesota, Michigan, Wisconsin, New York,
Vermont, and New Hampshire, and for BLM units in Idaho and Utah. All of
the amendments and revisions propose management direction for lynx and
are based on the conservation measures recommended in the Lynx
Conservation Assessment and Strategy.
The on-going amendments and revisions are at different stages. Most
units have completed the initial public scoping and are preparing
environmental documents. Draft analysis documents are being prepared
for public review and comment. Some decisions are expected this year.
The remaining forests and BLM units will likely begin amendment or
revision in the next couple of years.
The National Lynx Survey is being used to document current
distributions of lynx and will be used to refine habitat mapping,
because we recognize that all potential lynx habitat is not occupied.
The results of the survey will increase our knowledge about the current
distribution of lynx but will not directly affect the ongoing plan
amendment or revision process.
1999-2002 National Canada Lynx Survey
In 1999, the Forest Service began a three-year nationwide survey of
habitat to better identify presence and absence of lynx or lynx
populations. Dr. McKelvey will describe this effort in more detail in
the next panel. This survey is based on peer reviewed and published
research. The protocols included standards for training in field
methods, standards for field data collection, and standards for the DNA
analysis of hair samples to determine the hair was from lynx or from
another species. The Carnivore Conservation Genetics Laboratory on the
University of Montana campus in Missoula, Montana, developed the DNA
protocols. Dr. L. Scott Mills, who will testify later today, heads the
Missoula Lab.
The research scientists designed the survey protocols using a
systematic approach described in the Lynx Science Report and in other
peer reviewed journals. The first step is to ascertain current
distribution by means of presence/absence surveys. If lynx presence is
detected in an area, the next step is to find out what the presence
means: it could be a pet, a fur-farm escapee, or a lone wild lynx
passing through the area. To separate out these situations from those
of a resident lynx population, research scientists follow-up by
conducting intensive snow track surveys, designed and run by Dr. John
Squires who is currently conducting a large radio telemetry study of
lynx in Montana. If the unauthorized samples had not been identified,
the follow-up protocols would have been used to find out if lynx were
present.
Lynx hairs have been found in only two areas where we did not know
lynx occurred. These two areas were in the Boise and the Shoshone
National Forests. As the survey protocols require, research scientists
are doing follow-up intensive snow tracking in these areas to help
determine the extent and significance of the lynx occurrences.
Forest Service Investigation of the National Lynx Survey and Follow-up
Actions
Following the Forest Service investigation, a number of actions
have taken place. Forest Service employees responsible for submitting
unauthorized samples (except the now retired employee) have been made
aware of the seriousness of their actions by their Forest Service
supervisors. None of the individuals involved in submitting
unauthorized samples from the three agencies has been allowed to
participate in the 2001 and future portions of the 1999-2002 lynx
survey effort.
When Chief Bosworth became aware of the unauthorized samples, and
in light of continuing questions about the survey, he asked the USDA
Inspector General to look more fully into the allegations of
unauthorized samples. The Department of the Interior's Inspector
General and the General Accounting Office (GAO) also are looking into
this issue. The ongoing investigations may ultimately indicate that
further action is warranted by agency managers.
The Chief recently directed that the already existing Forest
Service Code of Scientific Ethics be applied to all Forest Service
employees, agency partners, and cooperators who participate in research
funded with Federal research appropriations. The Administration and
Congress have been adamant that the information collected and used by
the Federal Government be top-quality. The importance of professional
conduct and ethical behavior is being emphasized with employees at
meetings and as part of training modules.
The research scientists did not include the unauthorized hair
samples in the survey data. They also reviewed the field notes for
anomalies. Other than the Boise and Shoshone samples, no other lynx
were identified outside known areas and, as mentioned earlier, follow-
up survey protocols are being used. Based on these factors, the
research scientists believe they can verify the scientific authenticity
of the National Lynx Survey. Let me be very clear: the unauthorized
samples have been excluded from this survey.
Summary
In summary, Mr. Chairman, we know unauthorized samples were
inappropriately submitted by employees. The integrity of the National
Lynx Survey has been questioned. However, the scientists believe the
study remains valid. No land management plans have been changed because
of the unauthorized lynx hair samples. Three investigations are
underway. The Forest Service Code of Scientific Ethics now applies to
all Forest Service employees, partners, and contractors that work on
Forest Service research. I regret this incident and the actions of a
few agency employees. Although the unauthorized samples were detected
and did not compromise the validity of the lynx survey, such situations
call into question the Forest Service's integrity. The Forest Service
is a science-based organization, and ANY efforts to collect, analyze,
display, communicate, and use species or other resource information
must be conducted to professional and ethical standards and within
established scientific protocols.
Mr. Chairman and members of the Committee, this concludes my
statement. We would be happy to answer any questions you might have.
______
Mr. McInnis. It appears that we are going to push the clock
too close, so Dr. Williams, we will come back. I am sorry we
have to do that.
But, Mr. Thompson, let me just say I appreciate your strong
statement, but I am still bewildered, and I will come back and
ask you or Mr. Rey, but I am still bewildered why, when you say
that this is an egregious act against the integrity of the
Forest Service, that these employees received a lecture and a
bonus, a pay increase. So we will come back to you, Mr. Rey.
Mr. Rey. We will address that after we come back.
Mr. McInnis. OK. We will be in recess 15 or 20 minutes.
[Recess.]
Mr. McInnis. The Committee will come back to order.
Dr. Williams, we will go ahead and proceed with you, with
your opening statement, and then we will go to questions. We
will ask questions of the panel all at once.
Mr. Rey. Mr. Chairman, with your indulgence, I was actually
going to conclude the Forest Service statement, if that is all
right.
Mr. McInnis. Well, we need to, I am trying to get it so the
third panel can be heard from. If you can wrap it up in less
than a minute, otherwise, I have got to move on because I would
guess that this Committee is going to have to adjourn by 1
o'clock.
Mr. Rey. Well, let me just wrap it up by saying this, that
the events, the specific events described by GAO and reflected
on by Mr. Thompson present us with specific management
challenges which we will meet. But, more broadly, I think they
raise some serious questions which go beyond the facts of the
event. Those are included in my written statement for the
record, and we can talk about those when you get to the
questions. Thank you.
Mr. McInnis. All right, and Mr. Rey, I would like to talk
about that. I would like you to continue that in the question
and answer session.
OK, Dr. Williams, you may proceed.
STATEMENT OF STEVEN L. WILLIAMS, DIRECTOR, FISH AND WILDLIFE
SERVICE, U.S. DEPARTMENT OF THE INTERIOR
Mr. Williams. Thank you, Mr. Chairman, and I appreciate the
opportunity to appear before the Committee to discuss the
submission of an unauthorized sample during population surveys
for Canada lynx. This matter came to the attention of the
Secretary of the Interior in December, and she immediately
asked the Department's Inspector General to investigate the
matter. The details have been provided to you, we all heard
today, by the General Accounting Office.
I would say, though, that I have no first-hand knowledge of
this matter, having taken office on February 6, 2002. I would,
however, like to provide my first impression of the events
surrounding this situation, based on a limited review of the
report received from the Department's Inspector General and
from a discussion with the General Accounting Office, which
both occurred last Friday afternoon.
I first became aware of this situation in December, while
in my previous position as Secretary of the Kansas Department
of Wildlife and Parks, and while I was awaiting confirmation by
the Senate. As a scientist and a natural resource manager, I
was deeply concerned and disturbed by what I heard.
I am very aware of the critical importance of quality
science as a foundation for the Service's activities and
decisions, and as a Ph.D. biologist I am familiar with what
constitutes quality science and proper research procedures. I
am also deeply aware of the obligation of a public agency to be
trustworthy in carrying out its responsibilities.
The submission of an unauthorized ``test'' sample was a
breach of survey protocol and a demonstration of a lack of
scientific rigor and professionalism by these two individuals,
and therefore was inappropriate and unacceptable. While the
actions of these individuals have caused the public to doubt
the overall credibility of the agencies' science, I do want to
point out that this is not an example of bad science by the
agencies. Instead, it is bad conduct by the individuals
involved. This is a crucial distinction which we should keep in
mind in evaluating this situation.
Because of the importance of science to both the perception
and the reality of our activities, particularly with regards to
the Endangered Species Act, the Fish and Wildlife Service has
adopted a set of principles to guide the administration of ESA
activities. These are detailed in my formal statement to the
Committee. These policies have established a solid framework
within which scientifically based decisions can be made under
the ESA.
In recent past, the National Academy of Science has been
asked to examine three Service scientific decisions under ESA.
They validated the biological opinion on the Missouri River and
the science behind the listing of the Atlantic salmon, but
found a lack of scientific justification for a major element of
the biological opinion on the operation of the Klamath project.
These evaluations show the Service does conduct sound
science work and generally makes scientifically valid
decisions. However, in this context ``generally'' is not good
enough. Our goal must be ``always.'' I want to share with you
today my commitment as a new Director of the Fish and Wildlife
Service to provide the leadership, training, resources, and
discipline to ensure and enforce high standards of scientific
integrity and ethics in addressing the Service's
responsibility.
While the restoration of scientific credibility was not a
challenge I anticipated when I accepted the President's offer
to head this agency, it is the challenge now before me and it
is top priority. In my first message to all Fish and Wildlife
Service employees upon taking office, I stressed this issue,
stating, ``I am confident that the Service will be able to rise
to the challenge of restoring its scientific credibility, which
has been called into question by recent events. As a biologist,
I know that sound natural resource management decisions must be
based on sound science. At the Service, managers are required
to rely on the best available science to administer the laws we
are charged with upholding.''
I have already taken a number of actions, and others are
underway, again as detailed in my formal statement you will
find on pages 4 and 5. On February 12th we issued a Director's
Order which requires all employees who are involved in
scientific studies or investigations to adhere strictly to
established scientific protocols, and informing employees that
acting outside of those protocols would result in disciplinary
action, including termination.
We will bring external science expertise to bear on the
design and conduct of our scientific studies as well as review
of the final product. I will be asking the advice of respected
Fish and Wildlife management professionals, from academia, from
the States, and from the private sector.
Last, the Secretary and I must take the time to fully
analyze the Inspector General's report which we received, as I
mentioned, last Friday, March lst, and the report of the
General Accounting office, before making determinations as to
how best to implement the IG's recommendations, and whether
actions beyond those I have described here and in my formal
statement are needed. We will report back to you on this in the
near future.
With help from the Secretary and from Congress, including
continuing oversight to ensure we perform as promised, I am
confident we will improve the public's trust in the Fish and
Wildlife Service as an objective and scientifically based
steward of our Nation's natural resources.
This concludes my prepared remarks, and I would certainly
be pleased to try to respond to any questions you might have.
[The prepared statement of Mr. Williams follows:]
Statement of Dr. Steven A. Williams, Director, Fish and Wildlife
Service, U.S. Department of the Interior
Mr. Chairman, I appreciate this opportunity to appear before the
Committee to discuss the role of Fish and Wildlife Service (Service)
biologists in the incident involving the submission of unauthorized
samples for genetic testing during population surveys for the Canada
lynx in National Forests in Washington State.
As you know, this matter involves action by two Service biologists,
three Forest Service personnel, and two State employees who submitted
unauthorized lynx hair samples to the lab charged with analyzing those
samples. This incident came to the attention of the Secretary of the
Interior in December 2001, and she asked the Department's Inspector
General to investigate the matter. The General Accounting Office and
Inspector General of the Department of the Interior have provided the
details to you.
Last Friday I received a briefing by the Inspector General's office
and a copy of their report. I am relying on that briefing and report
for information as to exactly what occurred. Having taken office
February 6, 2002, I have no personal knowledge of this matter.
I am acutely aware of the critical importance of quality science as
a foundation for the Service's activities and decisions. As a Ph.D.
biologist, I am familiar with what constitutes quality science and
proper research procedures. I am also deeply aware of the obligation of
a public agency to be trustworthy in carrying out its responsibilities.
The submission of an unauthorized ``test'' sample was not provided for
in the survey protocol and, therefore, was inappropriate and
unacceptable.
While the actions of these individuals have caused the public to
doubt the overall credibility of the agencies' science, I want to point
out that this is not an example of bad science by the agencies
involved; instead it is bad judgment by the individuals involved. This
is a crucial distinction which must be kept in mind in evaluating this
situation. Therefore, I am reviewing the disciplinary actions that were
taken against the employees and I am analyzing the Inspector General's
recommendations for further disciplinary action.
Based on the information received from the Department of Interior's
Inspector General and from a discussion with the General Accounting
Office, here is my understanding of the events surrounding this
situation. Certain biologists from the three agencies questioned the
lab's ability to accurately identify species using DNA testing of hair
found in the wild.
In 2000, these doubts led the two Service biologists to ``test''
the system by submitting unauthorized samples for DNA analysis. The
survey protocol did not include provisions for the submission of
``test'' or ``blind samples.'' Therefore, this decision was outside of
the survey protocol, was not reviewed by supervisors of the survey, and
was not approved by the survey field coordinator, and the lab
conducting the DNA analysis. As I noted above, this is not bad science
by the agencies. Instead, these were misguided actions taken by two
Service biologists; a breach of survey protocol and a demonstration of
a lack of scientific rigor and professionalism by these two
individuals. In essence, there was a disconnect between the involved
biologists in the field and the lab conducting the analysis.
The distrust or concern should never have occurred because the lab
had verified its analysis at an independent lab prior to conducting its
work. This information should have provided field biologists with
confidence in the lab's ability to successfully identify species,
obviating a need to secretly test the lab.
Irrespective of the poor judgement demonstrated by these
biologists, the sample submission would not have altered land
management decisions on the National Forest. The reason is that the
``test'' sample, which was secured from a captive lynx, was identified
as having originated from an area within the Wenatchee National Forest
previously identified as occupied by lynx. However, even if the
``test'' sample were to have been identified as originating from an
area not known to be occupied by lynx, further surveys and analyses
conducted by interagency employees and input from the general public
would have been conducted prior to delineating the area as
``occupied.''
Because of the importance of science to both the perception and the
reality of our activities, particularly with regard to the Endangered
Species Act (ESA), the following principles must guide the Fish and
Wildlife Service's administration of ESA activities: ensure that our
decisions are based on the best available science; seek independent
peer review of our decisions where possible; provide for public
participation throughout our decision process; and ensure that our
decision process is understandable and transparent. These principles
were published at various times in the federal register. I will provide
you with copies of these notices at your request.
I can assure you that now that I have been confirmed, these
principles and policies will be fully put into practice. Having spent
16 years working in state fish and wildlife agencies, I have a deep
appreciation and respect for state employees who possess the scientific
expertise and understanding of local issues.
These policies have established a solid framework within which
scientifically based decisions can be made under the ESA. Recently, the
National Academy of Science (NAS) was asked to examine three of our
scientific decisions made as part of biological opinions under the ESA.
The NAS validated the biological opinion on two of those decisions, but
found a lack of scientific justification for a major component of the
biological opinion on the operation of the Klamath Project. While these
examples are too few to make generalizations about our accuracy rate,
we believe that the Service generally uses sound science in its work
and uses the products of that science to make scientifically valid
decisions. However, in this context ``generally'' is not good enough;
our goal must be ``always.'' Where that soundness and excellence has
been compromised, we will address it.
As stated earlier, due to the serious nature of the incident, the
Secretary requested that the Inspector General conduct an
investigation. The Inspector General completed his investigation and
issued a report that recommends four actions:
1. LThat the Secretary ask the Department's Chief scientist to
convene a workgroup consisting of internal and external scientists to
(a) review and make recommendations on how to restore rigorous science
to the Endangered Species Program and (b) to design and implement a DOI
Scientific Code of Ethics;
2. LThat the Office of the Inspector General accelerate its
scheduled review of DOI's conduct and discipline process;
3. LThat the Office of the Inspector General conduct a follow-up
audit of FWS's monetary incentive awards program to determine if
previous OIG recommendations have been implemented; and
4. LThat the Director of FWS revisit the issue of administrative
action in this matter with a view towards considering (a) more
meaningful punishment for those previously counseled, and (b)
administrative action against additional FWS employees at the Region
and Headquarters.
The Secretary and I will fully analyze the Inspector General's
report, which was transmitted to us last Friday, and the report of the
General Accounting Office, before making any determinations on how to
best implement the Inspector General's recommendations.
Today, I want to share with you Secretary Norton's and my
commitment to provide the leadership, guidance, training, resources,
and discipline to ensure and enforce high standards of scientific
integrity and ethics in addressing the Service's responsibilities.
While the restoration of scientific credibility was not a challenge
I anticipated when I accepted the President's offer to head this
agency, it is the challenge now before me, and it is my paramount
priority.
In my first message to all Fish and Wildlife Service employees upon
taking office, I shared my focus and commitment to science, stating in
part:
I am . . . confident that the Service will be able to rise to
the challenge of restoring its scientific credibility, which
has been called into question by recent events. As a biologist,
I know that sound natural resource management decisions must be
based on sound science. At the Service, managers are required
to rely on the best available science to administer the laws we
are charged with upholding.
I am in the first stage of this initiative, but it is one that will
dominate my agenda as Director and my leadership of the bureau. I have
developed a multi-faceted approach to address this issue. Key elements
include:
performance and conduct standards
LWe have developed personnel standards which specify
disciplinary consequences for inappropriate or unacceptable behavior
related to science. On February 12, a Director's Order was issued
concerning ``Disciplinary Action for Unauthorized Activities in the
Course of Scientific Studies or Investigations.'' Key components of
this Order include:
* LRequiring all employees who are involved in scientific
studies or investigations to adhere strictly to established scientific
protocols;
* LRequiring that any employee who questions the scientific
methods being used in a study, including the quality assurance and
quality control procedures for analysis, use appropriate channels to
address their concerns with the Director of the research;
* LStating that any measures taken outside of established study
protocols to ``test'' any aspect of a study without the knowledge and
consent of the principal investigator are always unacceptable; and
* LInforming employees that acting outside of established
scientific protocols would be grounds for disciplinary action up to and
including removal from the Service.
LAs subsequently recommended by the Inspector General, we
are also working with the Department's Science Advisor on a Code of
Ethics to more broadly address the issues that have arisen here.
leadership
LPersonal commitment--I have met personally with Regional
and field managers in 3 of our 7 Regions, and focused on the science
issue in my public and private remarks. I will soon do the same with
the remaining Regions in the near future.
LI will ensure that all our Regional Directors and
Assistant Directors, both in our collective meetings and in their
individual actions, focus on sound science as the foundation for
decisions.
optimize external resources
LWe will fully utilize good science support, including
bringing external science expertise to bear on the design and conduct
of our scientific studies and evaluations, as well as review of the
final product. I will seek advice from respected wildlife management
professionals, academia, States, and the private sector.
LIn cooperation with the Department, we are examining
which Service products and processes would benefit by additional peer
review. The findings of this review will be rapidly implemented.
LWhenever possible, I would like to utilize independent
scientific expertise in our activities at the planning level.
training
LI have directed the Service's National Conservation
Training Center to review the full range of its instructional programs
to ensure that the importance of scientific rigor, scientific integrity
and ethics in science is integrated into all of our technical
curriculum, supervisory training, leadership development programs, and
our current new employee orientation. It is a well-established axiom
that an organization will apply the skills that it focuses on in its
learning phase.
LAll agency managers, supervisors, and leadership will be
required to satisfactorily complete this training. It will be provided
to all new employees as an additional part of standard existing new-
employee training.
LI have further directed the National Conservation
Training Center to make preparations for me to discuss this issue with
the entire organization through the use of our interactive broadcast
network. Additionally, I have directed that during this broadcast each
employee personally receive a copy of my policy regarding scientific
integrity and professional ethics to raise Service-wide awareness about
this issue and to leave no doubt where I stand on this subject and the
consequences awaiting any employee who violates this policy.
LLastly, I have directed that instructional materials be
prepared and made available to each Regional Director to enable them to
conduct special local sessions with their employees about the topics of
scientific rigor, validity, and integrity.
It is my commitment and priority to address the problem evidenced
by the unauthorized activity in the lynx survey. I believe the steps I
outline here provide long-term emphasis on professionalism and ethics.
Most importantly, the emphasis on standards, training, leadership, and
enforcement will support continued good work by the Service, and will
avoid actions that would undermine those standards.
When it is appropriate under the law to exercise our discretion to
account for economic and human impacts, we will do so. I am confident
that the course of action outlined above will improve the public's
trust in the Service as an objective and scientifically-based steward
of natural resources.
This concludes my prepared remarks. I would be pleased to respond
to any questions you may have.
______
Mr. McInnis. Thank you, Dr. Williams. We are going to go
ahead and start with the questioning.
My first point, and I will start the questioning, not long
ago in Los Angeles we had a police officer who planted
evidence. As a result of that one particular case, they had to
reopen every case that that officer was involved in and, as
you, unfortunately they found that there were a number of cases
that expanded beyond that.
My concern is that if these particular biologists, the
Forest Service and the Interior employees, Fish and Wildlife
employees, if they have been involved in other studies, have
you tracked those other studies to see if their behavior has
followed the same track that it did with this study? And what
are the future conditions being placed on these employees as
far as their involvement in further studies or job
responsibilities where they might have again an opportunity to
plant the evidence?
I can tell you that in my past history I have found that
people tend to repeat their misdeeds. It just seems to be
something dealing with human nature, despite the fact they
promise they will never do it again, and oftentimes I have
often found, even with my own children, that verbal counseling
isn't necessarily successful.
So why don't you respond as to what we are doing to look at
these specific employees and what other studies they are
involved in, what we are doing in the future to monitor these
employees. That would be question No. 1.
And then question No. 2, while we are on these employees,
we have been doing some looking into this verbal counseling.
Less than 3 months after receiving verbal counseling, we do
have one of the Forest Service biologists received a
commendation for their leadership. I mean, that is appalling. I
can't believe these people are being commended. They have
received ``verbal counseling.''
So that is good enough to get us a start. Let's start first
with what we are doing about the history and what kind of
conditions, what kind of oversight on these employees in the
future. It is clear to me they are not to be trusted, by their
behavior. And No. 2, if you want to answer why they got
commendation for leadership and bonuses after this kind of
behavior.
So whichever one of you wants to start, but I want to hear
from the members of the panel. Go ahead, Mr. Rey.
Mr. Rey. With regard to the first question, we have
reviewed the projects that the Forest Service biologists have
been involved in, as well as the projects that they are
currently assigned to, and we are comfortable that those
projects do not lend themselves to circumstances where we will
have to worry about their motivations or their activities in
the future.
The record should be clarified to note that upon learning
of the problem, they were taken off the lynx project. That was
one of the measures that was taken immediately.
We are not aware that any of the--and of course one of the
Forest Service employees has retired, so that is no longer an
issue in that particular case--we are not aware of any merit
award increases that any of the biologists have increased, nor
any commendations for leadership. We are aware of nonmonetary
awards of a de minimis nature for their work on other projects
unrelated to the lynx episode.
Mr. McInnis. Well, they may not have received money, but
you say other awards. I mean, doesn't the fact, Mr. Rey,
doesn't the fact that an employee has committed a misdeed in
one area kind of shadow the rest of accomplishments they may
have, No. 1?
And, No. 2, you have still not answered my question: What
kind of monitoring is going to be placed on these employees for
future involvement that they might have where there is a
temptation or an opportunity to submit false evidence?
Mr. Rey. The answer to the first question is that the award
which was provided was nonmonetary in nature. It was a travel
bag valued at under $200, for work on an unrelated project, and
the award was presented before management in the Forest Service
became aware of the lynx problem.
The answer to the second question is that we have taken
them off the lynx project and put them on projects where we
don't think we are going to need to monitor them, because the
nature of what they are doing is dissimilar to this kind of
work.
Mr. McInnis. Dr. Williams, do you have anything you would
like to add?
Mr. Williams. Yes. To respond to your first question, in
the IG's report there is a series of pages that looks at the
two individuals who were involved in the submission and
documents what you suggested, the history of their involvement
in other surveys, and we will be taking a look at those surveys
and their involvement.
As far as the future, just as with the Forest Service, the
two individuals obviously are no longer working on the lynx
survey. I can't report to you right now what the other
individual is involved in, but that is something, again
following the IG's report and analysis of that, that we will
watch very closely.
As to the awards, honestly, when I looked over the report
Friday and this weekend, that is a question in my mind. I
would, though, make a distinction just to clarify, not as an
excuse but as clarification, that at least one of the awards
was--I should put it the other way--none of the awards were for
their work on the lynx survey. But that is something that I am
going to take a second look at.
Mr. McInnis. I point out to the panel that, I mean, you can
be assured that the Los Angeles police officer that planted
evidence in one case was not about to receive a commendation
medal or some other kind of pat on the back in another case. It
kind of dilutes the integrity of the process.
And then finally, to wrap it up, Dr. Williams, if you would
submit, just let us know what your findings are, since you are
in the investigatory stage, of other previous studies that
these particular individuals were involved in, that would be
helpful.
Mr. Inslee?
Mr. Inslee. Thank you. Mr. Rey, I just read your written
statement. I don't know if you testified about this, but your
written statement says, ``First, the events described by Mr.
Thompson achieved such resonance because they apparently ratify
a suspicion held by some about the use of scientific
information in resources decisionmaking--that is, information
is manipulated under the guise of dispassionate expertise to
achieve desired, or even predetermined outcomes. This did not
occur in this instance, but the rush to judgment that it did
should serve as a warning signal to us.''
I want to focus just first on the part where you said this
did not occur in this instance. Why do you say that? Why do you
say that did not occur in this instance?
Mr. Rey. Based upon our internal investigation, we are at
this point working on the presumption that the actions of the
Forest Service, and for that matter the other biologists, were
not motivated by a desire to misrepresent data to expand lynx
habitat, but rather by an ill-conceived action that amounted to
a misjudgment, and that is that they were somehow responsible
for testing the validity of the laboratory we were using to
analyze those data. And that is the basis, so far, for that
conclusion. That is also the basis that I think the agency
rests the actions that have been taken so far with regard to
those individuals.
What you heard from GAO in the previous panel, however, was
some ambiguity about the underlying motivation, and that is why
our own Inspector General is conducting a similar
investigation, to see if we can shed some greater light and
satisfy ourselves finally that the conclusions that we have
reached preliminarily as a result of our initial investigation
are in fact what we want to rest with.
Mr. Inslee. And I assume you would agree that the agency's
treatment of those employees should be dramatically different
depending on what their motivation was?
Mr. Rey. That is correct, and I would go a step further. As
a response that the agency has taken to this particular
instance, we have extended the application of our Code of
Ethics for our researchers to anyone in the agency involved
even collaterally in a research project. These biologists were
not researchers. They were providing field assistance to a
research project.
The Code of Ethics, which previously applied to our
researchers, which now applies to all of our employees and
contractors and cooperators involved in research, is that any
misrepresentation of data is viewed as a serious offense, and
the remedy will range from a letter of reprimand to dismissal.
So we won't in the future become involved with a long
investigation about the motivation. The occurrence of a
demonstrated misrepresentation will be enough in the future to
trigger greater disciplinary action.
Mr. Inslee. Do you have any reason to believe that this is
a widespread problem in the agency?
Mr. Rey. No. It is a widely held perception about the
agency, and that is something that we are most interested in
changing.
Mr. Inslee. Do you think, you know, when you think about
this, kind of looking at it the other way, it makes sense that
you would challenge the finding of labs in some sense. It makes
sense that the system have a control process where controls
will be submitted blindly to a lab, unbeknownst to the lab, so
that you test the accuracy of the lab, black or white, pro or
con, up or down. To me, it really makes sense that you have
such a challenging system.
So in a sense it makes sense that somehow that the
laboratory was challenged, but this wasn't the way to do it,
obviously. Do you think, is the agency considering any ways to
either make the challenging, a protocol for a challenge more
user-friendly to the various biologists, so that they trust it
more? Is there some way you can make your challenge system more
accessible, efficient? Are you considering that at all?
Mr. Rey. Every time we design an experiment, we look at the
protocols and the controls. In this case we had controls in
place, so there was no need or cause for individual field
biologists to do their own experiments, so to speak.
I think the breakdown here was in part one of confidence as
well as information. One of the lessons from this is that when
we enlist field biologists to assist in research, we are going
to have to do a little bit better job of explaining to them the
entirely of the research protocol, so that they understand
where the controls are, and aren't feeling that it is their
responsibility to make them up as they go along. But clearly we
will have to do a better job of that.
Mr. Inslee. I would second that motion. Thank you.
Mr. McInnis. Mr. Osborne?
Mr. Osborne. All right. Thank you, gentlemen, for being
here today.
The district that I represent is 97 percent owned by
private landowners, and it is largely rural, largely
agricultural. So how you folks are perceived is really
important, and right now the events in the Klamath Basin, this
particular incident, and then one which I am about to read to
you, I think have really led to some issues that are very
damaging to your cause and to the landowners. Let me just
explain this briefly.
In 1978, 56 miles of the Platte River in Nebraska was
designated as critical habitat for the whooping crane, and
subsequently this statement was made by someone from the
Whooping Crane Trust, someone who works for them. It was not
somebody that was a landowner.
They said, ``From 1970 to 1998 there were no confirmed
whooping crane sightings on the Platte River.'' This is
critical habitat. No sightings during that period of time, 28
years, and still it is declared as critical habitat. ``During
1981-1984, radio tracking of whooping cranes, 18 whoopers were
tracked on three northbound and two southbound migrations. None
of them used the Platte River.''
And so the concern here is, we have got a whole bunch of
people out there in Nebraska who are saying, ``What in the
world is Fish and Wildlife doing?'' I mean, everybody seems to
know that this designation was fallacious. It was not based on
sound science. And now we are going to have another designation
for the piping plover and the least tern, and they have not
nested at any time on that stretch of the Platte River in the
last 10 years.
And so what I am saying, I have seen it both ways. And Mr.
Williams, I know that you are new, and I know that this is not
your baggage, but what I am trying to tell you is that I have
seen a couple of Fish and Wildlife people who have worked with
the landowners. They have incorporated their cooperation. They
have had a tremendous relationship, and some great things have
happened as far as the wildlife and the species.
And on the other hand, I have seen an attitude of ``My way
or the highway. We have got the Endangered Species Act backing
us up, and you guys get out of the way.'' And that has been
very, very damaging. And of course this type of thing here, it
seems to me like we are saying to some degree, ``Well, no big
deal. These guys may have had good motives. We don't know what
their motives were, but they may have been well-intentioned.''
But I can tell you from the standpoint of public
perception, this is a big deal, and to let these people get by
with a lecture is ridiculous. There is no place--and I don't
care what their motivation was. In private industry, any other
area of the country, if it is well run, you do not give them a
lecture and allow them to continue to work for you.
And so what I am telling you is that, in trying to
represent these people out there who are landowners, this had
better be taken very seriously because it has really led to a
real lack of credibility, and it makes your jobs much harder. I
know that you mean well. I know that you are well-intentioned.
I know you are trying to get a job done.
And so I just want to make that statement. I don't have any
further question, but I think that there is an ethos that is
involved with an organization, and if the prevailing atmosphere
is that you can do something like this and you do not pay a
price for it other than a lecture, that is very pervasive, and
it sends a very powerful message to your employees. And so I am
sorry that this has happened, but I really am very concerned
about the response that has been given to this issue.
I yield back.
Mr. McInnis. Thank you, Mr. Osborne.
Mr. Tancredo?
Mr. Tancredo. Thank you, Mr. Chairman.
Mr. Williams, do you have any idea of whether or not the
department has a policy with regard to turn-around time after a
congressional inquiry? A letter comes from a Congressman asking
for specific information. Do you know when the Department of
Interior says that that should be responded to?
Mr. Williams. I don't know specific time period. There may
well be one. Certainly a timely and accurate response to
congressional and any public inquiry is something that we need
to shoot for.
Mr. Tancredo. On December the 18th I sent the Secretary of
both the Department of the Interior and the Department of
Agriculture a letter, a copy of which I have here, in which I
among other things requested--well, I say ``It would suggest
that it is incumbent upon all involved to revisit and reexamine
the results of not only the lynx survey but of any other
projects or studies that these individuals may have been in
position to disrupt or sabotage over the course of their
employment. I also encourage you to make the results of
wholesale internal evaluation available to members of the
Resource Committee.''
I have not yet--and it goes on for a couple of pages here--
but I have not yet heard a word back. Now I understand that
investigations of course have been done. I believe Mr. Rey
suggested that you are essentially in agreement with the
results of the investigation up to this point in time, that
there were no other issues that needed to be looked into.
Certainly I would appreciate it very much if you could find
out why we have not, No. 1, received a response; and, No. 2, if
you could get us a response, a written response to this
request.
Also, I would like to ask, when you claim, and I believe it
was Mr. Rey who said that you have no further concerns about
the kinds of activities which these gentlemen were involved
with in the past; that your investigation, your internal
investigation, initial investigation, led you to believe that
there was no other reason to be concerned.
Can I ask you if in that internal investigation, when these
two gentlemen who are still in some way affiliated with the
agency, when they told you that the reason why they did this
was to in fact test the validity of the lab, the results or the
work of the lab, what proof do you have? You heard the GAO
inspector say that he had nothing else but their word on that.
What proof do you have that led you to the conclusion that that
was in fact why they did it?
Mr. Rey. Let me take your questions in order, so that I can
get all of them.
First of all with respect to your December 18th letter, as
I am sure you can appreciate, much of our December mail is
arriving or has been arriving over the last couple weeks in a
slightly browned and more crispy fashion--
Mr. Tancredo. As is mine, yes.
Mr. Rey. --than it was originally sent, and that letter
response will be to you shortly, although some of the issues
that you raised are issues in the OIG investigation and they
will be responded to in the course of that investigation.
Second, what I think I said, and I will try to say it more
artfully, is that the results of the first investigation led us
to some preliminary conclusions that we are now evaluating
further in the second Office of Inspector General
Investigation, and that one of the most--
Mr. Tancredo. I heard that part, but you said you came to
some preliminary conclusions. Stop right there for a second.
Those conclusions to which you came led you to believe, if I
remember your statement, that there was nothing else out there
that you had to worry about in terms of other work that these
people had been involved with.
Mr. Rey. Right. We reviewed the projects that they had been
involved in prior to this, and the nature of their activities
didn't lend themselves to the opportunity to do this kind of
action, and that is what led us to the conclusion that we
weren't needing to be concerned about the validity of the
projects they worked on previously.
Mr. Tancredo. And did your original conclusion, I mean the
conclusion to which you came after your initial study, also
lead you to believe that their claim that they were doing this
to test the lab was accurate.
Mr. Rey. That was the conclusion of the initial
investigator, and the question of motivation is sufficiently
murky that that is an issue that we asked OIG to look into
specifically.
The basis for the conclusion of the original investigator,
because the Forest Service did undertake an investigation of
its own with an independent investigator last fall, was based
on how the actions were conducted compared to how you would
have--how a reasonable person would have proceeded if their
intention would have been to, by their actions, expand the
habitat of the lynx.
And there are several things that don't seem to lend
themselves to the conclusion that that would be a reasonable
motivation. First, the fact that they told lots of people or a
fair number of people what they were up to. Second, that they
selected, they labeled their samples in a way which would not
have immediately expand the lynx habitat.
One of the samples wasn't labeled as coming from the grid,
which would have raised questions about what it was about
before any subsequent field surveys would have been undertaken.
A couple of the other samples were labeled from parts of the
grid where we already knew lynx existed.
So if their intent was to expand the range of the lynx by
virtue of their activities, their activities wouldn't have
gotten them there. Third--
Mr. Tancredo. I could give you, I think, a logical reason
for doing the two things you have just described, anyway, and
come to the conclusion that they still could very well be doing
it for the purpose of expanding the territory.
First of all, it is very likely from everything I have
heard, and certainly from everything we have read, that the
culture within the agency is one in which it would not be
unusual for people necessarily to describe this kind of
activity with the assumption, perhaps justifiably, that their
action isn't that unique, and that the people to whom they are
or with whom they are communicating aren't necessarily inclined
to be shocked by this kind of thing, and would be in fact
somewhat proud of the fact that their colleagues had done this,
it is possible.
It is also possible to suggest that even the way in which
the samples were submitted, and from other, as you indicated,
from other sections where you knew lynx were already in
existence and were around, would be in a way a pretty smart
move, to kind of add to the credibility of the action they were
taking that was always designed for the purpose of expanding. I
mean, it is so hard to believe the alternative to that.
I mean, there are really only two ways that you can think
about this, it seems to me. One was that they were in fact
trying to expand the area in which lynx could be identified,
for obvious, again, purposes. Or that you believe them, that
they were trying to test the lab. And you know, it is so
amazing to me that that could be held up as a reasonable excuse
for doing it, when there is absolutely not a shred of evidence
that that is, you know, the case.
And so it just seems to me that to drop it there would say
that you are more on their side than ours in trying to find the
truth.
Mr. Rey. Well, I don't think I am on anybody's side. I am
interested in finding the truth, and we haven't rushed to
judgment about the specifics here. We have initiated a second
investigation to get to the question of motivation.
But based upon the disputes over the previous survey, the
Weaver survey, it is not out of the range of credulity, but
nevertheless well outside of the range of good judgment, for
some of our field biologists to believe that this laboratory,
by virtue of the fact that it wasn't showing the positives that
the Weaver study did, was misanalyzing the samples that were
being sent. It is not completely incredulous.
It is an area in which we are continuing to look. It is not
an example, as best we can tell, of widespread agency behavior.
It is something that is widely assumed by a large number of
people, and that is something that together we have to address
and deal with.
Mr. Tancredo. Were you concerned about the fact that--I am
sorry.
Mr. McInnis. Mr. Tancredo, I have allowed you an additional
5 minutes because I think it is very important, but I want to
get this third panel on, in fairness to the third panel. I am
going to conclude this panel.
Mr. Rey, what I would urge you to do is to read page 20 of
the contract investigator that you had. Just very briefly,
those comments are such that these control samples were not,
did not stick out like a sore thumb. In fact, I think that it
says, ``While there were unusual circumstances concerning one
of the samples, I note that if I had not been asked to examine
the samples''--I am leaving some blanks here because these are
names--``sent in pursuant to this investigation, I likely would
have thought only that it was a careless error. In other words,
it would not have occurred to me that that individual would
have sent in a sample of hair not actually collected.''
So take a look at that. I also would ask that you stay
around for the next panel, where we have somebody from the lab
there, because I don't want you chalking this up too early to
some harmless error that obviously would have been found. These
individuals admitted that they knew they were outside their
authority, they knew that they were not authorized to do this,
and so on.
Mr. Rey. I don't think anybody has called it a harmless
error. We don't believe it to be a harmless error. There is a
question of what their intent was, how malicious it was, and
what the appropriate remedy was, and all three of those
questions are in our view still open.
Mr. McInnis. Good, and keep in mind also that the previous
testimony was that it would kick in the second investigative
stage, which would then come back to these individuals--
Mr. Rey. That was incorrect. That was the only error in
generally accurate GAO testimony.
Mr. McInnis. OK. Well, why don't you clarify that very
briefly for us?
Mr. Rey. The snow surveys would be done by a separate set
of researchers, because the biologists involved at this stage
of the survey did not have the training to conduct the snow
surveys. And parenthetically, if there was malicious intent, at
this stage of an investigation we would probably have uncovered
additional activities, conspiratorial activities to try to rig
the snow surveys, and we have seen none of that so far.
Mr. McInnis. But if an individual believed, in their heart
they believed that the lynx was out there, and they believed
that the scientists were too narrow, that it needed to be
broadened, they could have kicked the broadening of it, even if
it didn't come back to them, in hopes that by broadening it,
that it would in fact find what they always believed to be
true, and that was that lynx were in existence out there.
Mr. Rey. They could have kicked in another round of survey,
there is no question about that. They would not have done them
themselves, though.
Mr. McInnis. I want to thank the panel, and I also want to
specifically commend you for expanding, for example, your
ethics code and so on. It is obvious to me that you take this
seriously. It is clear we have got to avoid this in the future.
Regardless of what side anybody is on, the integrity of the
system is what is in question here, and that is what we have to
preserve.
So I thank this panel and I would excuse the panel. Thank
you very much for your testimony. We appreciate it.
Mr. Rey. Thank you.
Mr. McInnis. And we will call the third panel up. On this
panel we have Mr. McKelvey, Research Ecologist at USDA Forest
Service; Dr. Mills, and Mr. Franklin. Why don't we begin with
Dr. Mills and we will just go that direction. You may proceed
with your opening statement.
STATEMENT OF T. SCOTT MILLS, ASSOCIATE PROFESSOR, WILDLIFE
BIOLOGY PROGRAM, SCHOOL OF FORESTRY, UNIVERSITY OF MONTANA
Mr. Mills. Thank you. Mr. Chairman and members of the House
Resources Committee, I thank the Committee for inviting me to
testify before you today. I am a wildlife biology professor in
the School of Forestry at the University of Montana. My
research and teaching expertise centers on understanding the
population dynamics of wildlife species. To this end, my
students and I use field studies, mathematical models, and
genetic analyses to address questions and apply biology.
In 1998 I began to collaborate on issues related to lynx
surveys with Dr. Kevin McKelvey, the lead scientist who
developed and implemented the National Lynx Survey for the U.S.
Forest Service. My role in the collaboration was to identify to
species the hair samples collected, using a DNA-based species
identification protocol developed in my laboratory and
subsequently peer reviewed and published.
In developing this protocol, we tested it using 95 known
samples collected across the range of the species involved, to
make sure for example that a lynx was always identified as a
lynx, a bobcat as a bobcat, and so on. Before the protocol was
published or instituted as a diagnostic tool in the National
Lynx Survey, we also conducted extensive blind tests on a total
of 87 samples both within our lab and at an external lab.
Species identification was correct in all 95 geographic range
tests and all 87 blind tests.
The National Lynx Survey has relied on field personnel in
12 States to follow predefined, detailed, rigorous instructions
developed by Dr. McKelvey and me to guide all aspects of
initiating the survey, collecting the data, and sending us the
samples.
The mislabeling of National Lynx Survey samples by a few
field personnel was wrong, and cannot be defended on any
scientific merit. That said, I believe that the National Lynx
Survey retains integrity to inform land management and to
provide credible scientific insights on lynx distribution.
Although the mislabeled samples could have led us to report
three false lynx detections, and the few mislabeled samples
have created problems for perception of the project as a whole,
two important components built into this study provide a
firewall that protects the integrity of the study for
evaluating lynx distribution.
First, the lead scientists, McKelvey and I, are population
biologists whose training would lead us to interpret the
results appropriately to the scientific community and to
management. Although mislabeled samples could have led us to
report false lynx detections on two national forests, we would
have simultaneously noted that a detection is not the same as a
population.
Second and most importantly, the hair collection in the
National Lynx Survey was only the first step in evaluating lynx
presence. As I am sure Dr. McKelvey will describe, follow-up
snow tracking and trapping efforts are built into the study to
separate actual lynx populations from transient individuals,
fur farm escapees, or as we have discovered, mislabeled
samples. Therefore, I do not believe that the scientific
validity of this study to contribute to land management
decisionmaking was compromised by the mislabeling of samples.
Finally, the question arises as to the motivation of those
who mislabeled samples. I do not know those individuals, nor do
I know their motivations. My experience throughout my career in
working with hundreds of biologists and field personnel,
including employees of U.S. Fish and Wildlife Service, U.S.
Forest Service, National Park Service, State wildlife
departments, private groups and several universities, is that
they have exceptionally high ethical standards in their pursuit
of knowledge. Although inappropriate actions may occur on an
individual and rare basis, my opinion is that these instances
do not invalidate the larger body of wildlife biology in the
same way that inappropriate actions by a few physicians does
not mean that we should shut down the practice of medicine.
In summary, I believe those few who mislabeled samples have
no legitimate excuse for their actions. However, I also believe
that their actions should not compromise the role of biological
studies in policy decisionmaking. I hope that the actions of
these few do not taint the excellent work of biologists across
this country, who strive toward the highest ethical standards
as they carry out a public mandate to understand the critical
needs of wildlife species.
[The prepared statement of Mr. Mills follows:]
Statement of Dr. L. Scott Mills, Wildlife Biology Program, School of
Forestry, University of Montana, (Representing myself and not any
organization)
Mr. Chairman and Members of the House Resources Committee,
I thank the Committee for inviting me to testify before you today.
I am a Wildlife Biology Professor in the School of Forestry at The
University of Montana. My research and teaching expertise centers on
understanding the population dynamics of wildlife species; to this end
my students and I use field studies, mathematical models, and genetic
analyses to address questions in applied biology (see attached
abbreviated Biographical Sketch).
In 1998, I began to collaborate on issues related to lynx surveys
with Dr. Kevin McKelvey, the lead scientist who developed and
implemented the National Lynx Survey for the US Forest Service. This is
one of numerous productive collaborations that I have had with research
scientists of the Forest Service and other state and federal agencies.
My role in the collaboration was to identify to species the hair
samples collected, using a DNA-based species identification protocol
developed in my laboratory and subsequently peer-reviewed and published
(see Mills et al. 2000, attached). The heart of this species
identification protocol involves polymerase chain reaction (PCR)
amplification of short (about 400 base pair) segments of mitochondrial
DNA found in the hair samples. We next use restriction enzymes to
produce species-specific fragments of DNA. These fragments are
consistent across the range of a species and are not shared by other
species. Hair samples can be amplified via PCR (allowing a species
determination) in approximately 80% of the samples.
In developing this protocol we tested it using 95 known samples
collected across the range of the species involved, to make sure, for
example, that a lynx was always identified as a lynx, a bobcat as a
bobcat, and so on. Before the protocol was published or instituted as a
diagnostic tool in the National Lynx Survey we also instituted
extensive blind tests--whereby the technician performing the analysis
did not know the identity of the sample ``on a total of 87 samples both
within our lab and at an external lab (USFWS National Fish and Wildlife
Forensics Laboratory in Ashland, Oregon). Species identification was
correct in all 95 geographic range tests and all 87 blind tests. We
continue to obtain known samples to validate this and other species-
identification protocols we have developed: to date we have analyzed
465 known-species samples including 151 blind test samples. These
validation controls have provided 465 chances for us to obtain the
wrong species identity, yet no samples have been misidentified.
Furthermore, we consistently detect lynx in geographic areas where they
are known to occur.
In addition to the validation procedure, we have other appropriate
laboratory controls to minimize the probability of inaccurate species
identification via either false positives (calling the source of a
sample lynx when it is not) or false negatives (calling the source of a
sample a species other than lynx when it is actually a lynx). Every set
of samples we analyze includes ``positive controls'' to ensure that
test conditions are appropriate for species identification and
``negative controls'' (pure water) to detect contamination. We also
extract DNA from hairs in a separate building from where other
laboratory activities occur to control against contamination.
We consulted extensively with the USFWS Forensics lab concerning
preserving the chain-of-evidence associated with forensic samples.
Records of all of the gels we have run are kept in lab books, all of
the extracted DNA samples are preserved in 20-below-zero freezers, and
all hair samples are held in sealed, dessicant-filled vials in locked
cabinets in the hair extraction lab. If there are any issues associated
with a specific sample, we can readily access the DNA analyses,
extracted DNA, and the original hair sample.
The National Lynx Survey has relied on field personnel in 12 states
to follow pre-defined, detailed, rigorous instructions developed by Dr.
McKelvey and me to guide all aspects of initiating the survey,
collecting the data, and sending us the samples. The mislabeling of
National Lynx Survey samples by a few field personnel was wrong, and
cannot be defended on any scientific merit (see correspondence items by
Mills and by Buskirk on page 471 of the Jan. 31 issue of Nature).
That said, I believe that the National Lynx Survey retains
integrity to inform land management and to provide credible scientific
insights on lynx distribution. Although the mislabeled samples could
have led us to report 3 false lynx detections, and the few mislabeled
samples have created problems for perception of the project as a whole,
two important components built into this study provide a firewall that
protects the integrity of the study for evaluating lynx distribution.
First, the lead scientists (McKelvey and I) are population biologists
whose training would lead us to interpret the results appropriately to
the scientific community and to management. Although mislabeled samples
could have led us to report false lynx detections on 2 National
Forests, we would have simultaneously noted that a detection is not the
same as a population.
Secondly, and most importantly, the hair collection in the National
Lynx Survey was only the first step in evaluating lynx presence. As I
am sure Dr. McKelvey will describe, follow-up snow tracking and
trapping efforts are built into the study to separate actual lynx
populations from transient individuals, fur farm escapees, or (as we
have learned) mislabeled samples.
Therefore, I do not believe that the scientific validity of this
study to contribute to land-management decisionmaking was compromised
by the mislabeling of samples.
Finally, the question arises as to the motivation of those who
mislabeled samples. I do not know those individuals, nor do I know
their motivations. My experience throughout my career in working with
hundreds of biologists and field personnel--including employees of
USFWS, USFS, NPS, state Wildlife Departments, private groups, and
several Universities--is that they have exceptionally high ethical
standards in their pursuit of knowledge. Although inappropriate actions
may occur on an individual and rare basis, my opinion is that these
instances do not invalidate the larger body of biology, in the same way
that inappropriate actions by a few physicians does not mean that we
should shut down the practice of medicine.
In summary, I believe those few who mislabeled samples have no
legitimate excuse for their actions. However, I also believe that their
actions should not compromise the role of biological studies in policy
decisionmaking. I hope that the actions of these few do not taint the
excellent work of biologists across this country, who strive toward the
highest ethical standards as they carry out a public mandate to
understand the critical needs of wildlife species.
______
[An attachment to Mr. Mills' statement follows:]
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[GRAPHIC] [TIFF OMITTED] 78011.006
Mr. McInnis. Thank you.
Dr. McKelvey?
STATEMENT OF KEVIN McKELVEY, RESEARCH ECOLOGIST, FOREST
SERVICE, U.S. DEPARTMENT OF AGRICULTURE
Mr. McKelvey. Mr. Chairman and members of the Committee,
thank you for the opportunity to appear before you today and to
talk about the National Canada Lynx Survey. I am Kevin
McKelvey. I am a research scientist working for the Rocky
Mountain Research Station of the USDA Forest Service. I am the
scientist with responsibility of overseeing the National Lynx
Survey effort, and today I would like to describe the
background, objectives, survey methods, DNA analyses, and
measures used to ensure quality and reliability associated with
the National Lynx Survey. I would like to summarize my
statement and enter the written remarks into the record.
In 1999, Dr. Keith Aubry, Yvette Ortega and I analyzed the
historical distribution of lynx, but we did not have data to
determine current distribution. Basic information about
distribution, patterns of reproduction, and habitat use are
needed to build an effective conservation strategy. The
National Lynx Survey was designed as the first step in this
process, with follow-up surveys in areas where lynx are
detected as the second step.
The survey is based on peer reviewed and published research
developed by the Rocky Mountain Research Station and the
University of Montana. The National Lynx Survey is funded and
chartered by the National Lynx Steering Team, an interagency
oversight group.
Our research protocol used scent stations to collect hair
and DNA analyses to determine species. After we detected lynx
using hair snagging, we could then employ more intensive
methods such as snow tracking to verify the detections and gain
additional information regarding lynx populations.
The study was designed to detect lynx with high likelihood.
We tested the probability of detection directly by implementing
the survey in as many areas as possible in Montana, Washington,
Wyoming, and Maine. We centered grids with transepts on large
contiguous areas of designated lynx habitat, and specified that
the survey be run in each location for 3 years.
To regularize methods and ensure consistency, we used
common training and the same instructor, and provided a kit
containing everything necessary to conduct the survey. An
extremely detailed field manual was also included in each kit.
The field protocol was simple, so that as long as there was
sufficient supervisory control, crews of variable make-up and
skills would not have difficulty following it.
Vials of collected hair were shipped to the Missoula lab.
Additional written reports were sent to the Forest Service
Regional Office in Missoula or to the Missoula lab.
For lab analyses, species identification methods were
developed using extensive internal and external blind tests as
well as geographic range tests to confirm that the DNA
differences used to separate species were consistent. Positive
and negative controls are included in each reaction. The
results of all laboratory reactions in the form of gel images
are incorporated into lab books, along with species
identification and associated notes.
We conduct follow-up surveys when we find a lynx sample in
an area where prior to the study we did not know that lynx were
present. We use an extremely intensive winter-long snow
tracking protocol designed and tested by Dr. John Squires of
the Rocky Mountain Research Station. This allows us to separate
detections associated with pets, lone wanderers, fur farm
escapees, and falsified or unexplained samples, from lynx
detections associated with populations of conservation
interest. We are running two such surveys this winter in the
Boise and Shoshone National Forests, the only forests where we
found positive lynx samples but did not otherwise know that
lynx were present.
There are two potential errors that can affect our survey.
First, the survey could falsely identify lynx in areas where
they do not exist. The second is that the survey could fail to
detect lynx in areas where they do exist.
The first error, false positives, is primarily controlled
by the rigor of the lab work. The extreme reliability of these
assays is the primary strength of the method and one of the
primary reasons we chose DNA analysis. Even though we have
processed more than 1,200 hair samples with sufficient DNA to
amplify, we have only four samples of lynx from two locations
where we were unaware of their presence prior to the survey. We
believe that the use of well-tested DNA analyses, combined with
intensive follow-up surveys, virtually eliminates the
possibility of false positive results.
In summary, we can verify the scientific authenticity of
the National Lynx Survey based on the reasons that I have
cited: survey methods, DNA analyses, and measures used to
ensure the quality and reliability associated with the National
Lynx Survey. We believe the integrity of the overall survey has
been maintained.
This concludes my statement, and I would be happy to answer
any questions that you or other members of the Committee might
have.
[The prepared statement of Mr. McKelvey follows:]
Statement of Kevin S. McKelvey, Research Scientist, Rocky Mountain
Research Station, Forest Service, U.S. Department of Agriculture
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to appear before you today to talk
about the National Canada Lynx Survey. I am Kevin McKelvey and I am a
research scientist working for the Rocky Mountain Research Station of
the USDA Forest Service. I am the scientist with the responsibility of
overseeing the National Lynx Survey effort, including design, analysis,
reporting and results publication. Today, I would like to describe the
background and objectives, survey methods, DNA analyses, and measures
used to ensure quality and reliability associated with the National
Lynx Survey.
Background
In 1994, the Rocky Mountain Research Station was charged with
evaluating the current state of knowledge concerning forest carnivores,
including the Canada lynx. Their published findings (Ruggiero et al.
1994) indicated that knowledge gaps concerning forest carnivores, and
lynx in particular were huge. In 1998, with the proposed listing of the
lynx under the Endangered Species Act, the potential consequences of
this lack of knowledge became critical. The Rocky Mountain Research
Station was charged with collating and evaluating all of the knowledge
concerning lynx, their prey, competitive interactions, and ecological
context.
As a part of this effort, in 1999, Dr. Keith Aubry, Yvette Ortega,
and I finished an analysis of the historical records for lynx in the
contiguous United States. However, these data are ambiguous concerning
the current range of the species. To build an effective conservation
strategy, we need to determine where extant populations of lynx are and
where they are not. The first step is to determine where there are
lynx, secondly, to determine numbers and look for evidence of
reproduction- that is, residency in an area--and finally, to determine
patterns of habitat use and conservation needs (Figure 1). The National
Lynx Survey was designed as the first step in this multi-stage process,
with follow-up surveys in areas where lynx are detected serving as the
beginning of the second step.
Dr. Leonard F. Ruggiero, Dr. John R. Squires, Gregory W. McDaniel
and I at the Rocky Mountain Research Station developed and published
the data collection methods used in the survey. Dr. L. Scott Mills, of
the University of Montana, Kristine Pilgrim, Dr. Michael Schwartz, and
I developed and published the DNA methods used to distinguish lynx from
other species. The survey is based on peer reviewed and published
research. The protocols included standards for training in field
methods, standards for field data collection, and standards for the DNA
analysis of hair samples to determine if the hair was from lynx or from
another species. The National Lynx Survey is funded by and reports
directly to the National Lynx Steering Team, an interagency oversight
group headed by Kathy McAllister, Deputy Regional Forester for Region 1
of the USDA Forest Service. The National Lynx Survey has three primary
leaders: James Claar, (Region 1, USDA Forest Service), Dr. L. Scott
Mills, and me. I have general oversight and design of the entire survey
effort. James Claar is responsible for coordinating with the field
offices, distributing funds and materials, and training. Dr. Mills,
Director of the Carnivore Conservation Genetics Laboratory, is
responsible for the protocols associated with DNA analysis. This
laboratory is jointly supported by the University of Montana, the Rocky
Mountain Research Station, and Region 1 of the Forest Service. Because
Dr. Mills is testifying at these hearings and will describe the DNA
methods, I will limit my discussion of DNA protocols.
In order to be effective, we determined that the National Lynx
Survey needed to have the following characteristics:
1) It had to produce unambiguous results. We didn't want to spend a
lot of time doing extensive follow-ups in areas that contained no lynx.
2) It needed to cover large areas of land, and therefore needed to
be compact and inexpensive. It was critical that the method not be so
cumbersome that surveys would be largely confined to roaded areas.
3) It needed to be a method that worked in the summer. Winter
methods cannot be applied in avalanche-prone or extensive roadless
areas.
4) It needed to be effective enough that lynx populations can be
reliably found. It is just as important to specify where lynx likely do
not exist as to determine where they exist. These two understandings
are required to define current distribution.
5) Because the survey was to be applied by a large number of people
with various backgrounds, it had to be simple and straightforward, and
not demand special skills. Field work had to be limited to data
collection only.
These considerations led us to discount most of the current survey
methods. The hair snagging method, however, used scent stations to
collect hair and DNA analysis to determine species. It satisfied all
the requirements for the survey. After we detected lynx using hair
snagging, we could then employ more intensive methods, such as snow
tracking, to verify the detections and gain additional information
regarding lynx populations.
Survey Design
The goal of the National Lynx Survey is to detect lynx and help to
define current range. It is a presence/absence survey. Therefore, the
study has to be designed to detect lynx, if present, with high
likelihood. If this goal is achieved, failure to detect lynx indicates
their absence or extreme scarcity, allowing possible range delineation.
We tested the probability of detection directly by implementing the
survey in as many areas as possible where lynx are known to be present.
Detection testing in the contiguous United States is limited
because we know of so few locations where lynx occur. In Northwest
Montana, we know of approximately 20 lynx in the Clearwater drainage
around Seeley Lake, Montana because our research group is conducting a
large radio-telemetry study in the area. We know that lynx occur in the
Okanogan National Forest in northwest Washington State, based on
ongoing camera surveys. We know of a tiny group in Wyoming, probably no
more than 5 individuals that exist in the northern portion of the
Wyoming range. Lastly, we know that lynx exist in northern Maine.
Additionally, there was evidence of lynx occurrence in Glacier National
Park and in the Pioneer Range in Southwest Montana. We placed surveys
in all these locations and have currently run them for at least one
year.
While extensive, the surveys could not cover the entire historical
range of the lynx. We therefore centered grids with transects on large
contiguous areas of designated lynx habitat. Additionally, we specified
that the survey be run in each location for 3 years. We took a number
of measures to regularize methods and ensure consistency. We used
common training with the same instructor across the survey, and we
provided a ``kit'' for each survey. The kit contained everything
necessary to conduct the survey. Important components (hair snares,
visual attractants, desiccant filled vials, lure etc.) were all
produced at a central facility to ensure consistency. An extremely
detailed field manual was also included in each kit.
Additionally, the field protocol was simple: people had to bait the
lures as specified (we provided the measurement spoons), place the
transects on a grid, set up each station as specified, collect hair 2
weeks later, place hair in the provided vials and the associated carpet
pads in plastic bags (also provided), label the vials and bags and mail
all vials and the associated pads to us. As long as there was
sufficient supervisory control to assure that these steps were done
properly, there is no reason that crews of variable make-up and skills
could not successfully carry out the protocol.
DNA Analysis of Hair
Hair vials were shipped to the Missoula Lab in boxes or envelopes
and were transferred unopened to our ``hair lab,'' a facility on the
University of Montana in a separate building from the lab in which we
performed polymerase chain reaction (PCR) amplification.
Participants in the National Lynx Survey sent written reports to
the Forest Service Regional Office in Missoula, or to the Missoula Lab.
The written reports consisted of a set of maps showing the location of
transects, vegetation forms, and a record of the stations from which
hair had been collected. By matching information within the written
reports with the vials and pads received at the Missoula Lab, we could
detect any addition or deletion of samples that might have occurred.
Additionally, we requested information concerning problems encountered
in implementing the survey and ideas as to how the survey could be
improved. These suggestions have led to a variety of minor changes in
the field protocol.
The extracted DNA is then taken from the hair lab located on the
University of Montana to the main laboratory located in the USDA Forest
Service Forestry Sciences Laboratory, both in Missoula. Species
identification methods were developed using extensive internal and
external blind tests, as well as geographic range tests to confirm that
the DNA differences used to separate species were consistent within the
species and consistently different between species. Species
identification of black bear and brown bear, coyote, wolf/dog, foxes,
and mustelids, such as fisher, marten, or weasel is also performed.
Additionally, other species are identified by sequencing the DNA and
matching the derived base pair strings to data from Genbank, a database
that serves as the primary international receptacle for DNA data.
Positive and negative controls are included in every reaction. The
positive control is a sample from a known organism of the target
species. The positive control demonstrates that if a sample from the
target species is present we are able to detect it. The negative
control is water, and is used to test for the presence of contaminants
in the reagents. The results of all laboratory reactions, in the form
of gel images, are incorporated into lab books along with the species
identification and associated notes.
We consulted extensively with the Fish and Wildlife Service
Forensic lab in Ashland, Oregon concerning how to best preserve the
chain-of-evidence associated with forensic samples. Records of all of
the gels we have run are kept in lab books, all of the extracted DNA
samples are preserved in 20-below-zero freezers, and all hair samples
are held in sealed, desiccant filled vials, in locked cabinets in our
hair extraction lab. If there are issues associated with a specific
sample, we can readily access the DNA analyses, extracted DNA, and the
original hair sample.
Follow-up Surveys
We initiate follow-up surveys when we identify a lynx sample in an
area where, prior to the survey, we did not know that lynx were
present. Where access permits (and it has so far) we utilize an
extremely intensive winter-long snow tracking protocol designed and
tested by Dr. John Squires to find lynx in preparation for trapping and
subsequent radio-tracking. This allows us to separate detections
associated with pets, lone wanderers, fur farm escapees, and falsified
or unexplained samples from lynx detections associated with populations
of conservation interest. We are running two such surveys this winter
in the Boise and Shoshone National Forests, the only heretofore unknown
lynx locations associated with the National Lynx Survey to date.
Check-backs and Validation
There are 2 potential errors that can affect a survey. First, the
survey could falsely identify lynx in areas where they do not exist.
The second is that the survey could fail to detect lynx in areas in
which they do exist (Table 1).
The first error, false positives, is primarily controlled by the
rigor of the lab work. In this context, we demonstrated that the
genetic assays we use for species identification are consistent across
the ranges of all of the potential felids, and were diagnostic 100% of
the time in rigorous double-blind tests. The extreme reliability of
these assays is the primary strength of the method, and one of the
primary reasons we chose DNA analysis.
Even though we have processed more than 1200 hair samples with
sufficient DNA to amplify, we have only found 4 samples of lynx in
areas where we were unaware of their presence prior to the survey.
These occurred on the Boise and Shoshone National Forests. We are
engaging in follow-up surveys of the types mentioned earlier in both
areas this winter. We believe that the use of well-tested DNA analyses,
combined with intensive follow-up surveys virtually eliminates the
possibility of false positive results.
The second error, failing to detect lynx when they are, in fact,
present cannot be entirely eliminated, but can be controlled through
thorough field methods. To reduce the chances of failing to detect
lynx, the survey employs a large number of approaches (Table 1).
However, the real test of any survey is determined by directly testing
its efficacy in the field. That is why we have placed so much emphasis
on placing survey grids in areas in which lynx presence is known or
strongly suspected.
Lynx Detections Not Associated With Lynx Conservation
There are lynx detections that occur within the National Lynx
Survey that are not of conservation concern. For instance, lynx are
domesticated both as pets and in fur farms, and may wander off or
escape. Additionally, even though we have protocols to keep the lynx
detection stations out of sight from roads or trails, and to limit the
knowledge of their locations, people can, and have, planted lynx hair
within our survey. To separate these occurrences from actual lynx
populations, we rely on follow-up surveys. In these surveys, we look
for evidence of multiple lynx, family groupings (the young-of-the-year
travel together with their mother), and the spatial extent of the track
data. Additionally, because we collect hair from the snow along all
lynx tracks encountered, we may be able to evaluate the population more
directly. As an example, on one of our test grids we obtained 12 hair
samples associated with lynx, and 7 of these samples were from
different individual lynx. If lynx hair were planted in areas that
contain no lynx, in our follow-up surveys we would not find tracks,
lynx hairs associated with the tracks, or other evidence of lynx such
as scat. We, therefore, believe that the overall integrity of the
survey is robust and will detect the presence of escaped pets, or
willful data manipulation.
Summary
In summary, Mr. Chairman, we believe we can verify the scientific
authenticity of the National Lynx Survey based on the reasons I have
cited: survey methods, DNA analyses, and measures used to ensure
quality and reliability associated with the National Lynx Survey. We
believe the integrity of the overall survey has been maintained. This
concludes my statement; I would be happy to answer any questions you or
members of the Committee might have.
Literature cited not included in the attached National Lynx Survey
Ruggiero, L. F., K. B. Aubry, S. W. Buskirk, L. J. Lyon and W. J.
Zielinski. 1994. The scientific basic for conserving forest carnivores:
American marten, fisher, lynx, and wolverine in the western United
States. USDA Forest Service General Technical Report RM-234.
______
[Figure 1 and Table 1 follow:]
[GRAPHIC] [TIFF OMITTED] 78011.001
[GRAPHIC] [TIFF OMITTED] 78011.002
Mr. McInnis. Mr. Franklin?
STATEMENT OF THOMAS M. FRANKLIN, WILDLIFE POLICY DIRECTOR, THE
WILDLIFE SOCIETY
Mr. Franklin. Mr. Chairman, members of the Committee, my
name is Thomas Franklin. I am Wildlife Policy Director of The
Wildlife Society. Thank you for the invitation to appear before
the Committee.
The primary point that I wish to make today is that The
Wildlife Society, a professional society responsible for
establishing codes of ethics and credentials for practicing
wildlife biologists, has developed rigorous standards for
persons engaged in wildlife surveys, management, and science.
Practicing wildlife biologists are highly educated
professionals, most with graduate degrees, who are dedicated to
excellence in natural resource management. They follow the
scientific method. They understand that their career
accomplishments depend on their credibility as biologists and
scientists.
Do they occasionally make mistakes? Yes, of course. Every
professional is subject to errors, whether they are biologists,
physicians, engineers, teachers, or lawyers. However,
professionals learn from their mistakes and avoid repeating
them.
We do not know the identity of the individuals who were
involved in the Canada Lynx Survey that is the subject of
today's hearing, nor do we know whether their behavior was
appropriate, so I shall not speculate about the lynx
investigation or engage in hypothetical discussion. However, I
am pleased to describe the Wildlife Society, its code of
ethics, and its standards for professional conduct that are
embraced by members of The Wildlife Society and certified
wildlife biologists.
The Wildlife Society, founded in 1937, is the association
of professional wildlife biologists and managers. We are
dedicated to excellence in wildlife stewardship through science
and education. The society's mission is to enhance the ability
of wildlife professionals to conserve diversity, sustain
productivity, and ensure responsible use of wildlife resources
for the benefit of society. We have nearly 9,000 members who
are employed by Federal, State, and local agencies,
universities, nongovernmental organizations, the private
sector, and some are students.
The Wildlife Society's members first adopted a code of
ethics and incorporated it into the society's bylaws in 1963.
Violations of the code of ethics by member may result in
censure, or censure and suspension from membership of the
society. All reported violations are reviewed by a
Presidentially appointed board of inquiry, or by the council,
which is the board of directors of the society.
The society adopted a program for certifying wildlife
professionals, called the Certified Wildlife Biologist Program,
in 1977. Since its inception, nearly 6,000 individuals have
participated in the program. In addition to describing their
education and experience, applicants must sign a pledge to
uphold and conduct their activities in accordance with the code
of ethics and standards for professional conduct. The standards
for professional conduct express traditional norms for
professional service.
Violation of either the code of ethics or standards of
professional conduct is a serious matter, and reflects
unfavorably on the entire wildlife profession. Accordingly, the
certification program contains a formal process to investigate
any charge of misconduct against anyone who as been certified,
as well as disciplinary actions for those found in violation of
standards.
The official code of ethics and standards for professional
conduct are included in my prepared statement, but they are
summarize succinctly in a 1987 paper on professionalism by
wildlife biologist Dr. Jack Ward Thomas, who is a past
president of The Wildlife Society.
They are, in Dr. Thomas's words: ``Tell folks your primary
responsibility is to the public interest, wildlife resource,
and the environment. Don't perform professional services for
anybody whose intent is to damage the wildlife resource. Work
hard. Don't agree to perform tasks for which you aren't
qualified. Don't reveal confidential information about your
employer's business. Don't brag about your abilities. Don't
take bribes, or offer them. Uphold the dignity and integrity of
your profession. And, last, respect the competence, judgment,
and authority of other professionals.'' Implied but not
specifically mentioned is a requirement to simply tell the
truth.
In conclusion, wildlife biologists are highly educated
scientists who dedicate their careers to understanding
ecological relationships and to managing wildlife following the
scientific method. Wildlife biologists conduct their work
ethically and professionally. If mistakes are made, they
correct their behavior, as do persons employed in similar
professions.
In the rare case when an individual may violate accepted
standards, The Wildlife Society has established disciplinary
procedures through our membership and certification programs to
ensure that the credibility of the profession is maintained and
that the public interest is served.
[The prepared statement of Mr. Franklin follows:]
Statement of Thomas M. Franklin, Wildlife Policy Director, The Wildlife
Society
Mr. Chairman and Members of the Committee, my name is Thomas M.
Franklin and I am Wildlife Policy Director of The Wildlife Society.
Thank you for the invitation to appear before the Committee. The
primary point that I wish to make today is that The Wildlife Society,
the professional society responsible for establishing the code of
ethics and credentials for practicing wildlife biologists, has
developed rigorous standards for persons engaged in wildlife surveys,
management and science. Practicing wildlife biologists are highly
educated professionals, most with graduate degrees, who are dedicated
to excellence in natural resource management. They follow the
scientific method. They understand that their career accomplishments
depend on their credibility as biologists and scientists. Do they
occasionally make mistakes? Yes, of course. Every professional is
subject to errors whether they are physicians, engineers, teachers, or
lawyers. However, professionals learn from their mistakes and avoid
repeating them. We do not know the identity of the individuals who were
involved in the Canada lynx survey that is the subject of today's
hearing. Nor do we know whether their behavior was appropriate.
However, I am pleased to describe The Wildlife Society, its code of
ethics, and its standards for professional conduct that are embraced by
members of The Wildlife Society and Certified Wildlife Biologists.
The Wildlife Society is the association of professional wildlife
biologists and managers. Our Society, founded in 1937, is a nonprofit
scientific and educational organization dedicated to excellence in
wildlife stewardship through science and education. The Wildlife
Society's mission is to enhance the ability of wildlife professionals
to conserve diversity, sustain productivity, and ensure responsible use
of wildlife resources for the benefit of society. The Wildlife Society
encourages professional growth through peer-reviewed publications,
technical meetings, certification, continuing education, professional
development, and working groups.
We have nearly 9,000 members who are employed by federal, state and
local agencies, universities, non-governmental organizations and the
private sector, and students. Society members are dedicated to
sustainable management of wildlife resources and their habitats.
Ecology is the primary scientific discipline of the wildlife
profession. The Society recognizes that humans, as well as other
organisms, are dependent upon the environment. The Wildlife Society has
a strategic document with goals that guide and direct our strategic
emphasis. Those goals include:
1. LDevelop and maintain professional standards for wildlife
research and management.
2. LEnhance knowledge and technical capabilities of wildlife
managers.
3. LAdvance professional stewardship of wildlife resources and
their habitats.
4. LAdvocate the use of sound biological information for wildlife
policy decisions.
5. LIncrease public awareness and appreciation of the wildlife
profession.
the wildlife society code of ethics
The Wildlife Society's members first adopted a Code of Ethics and
incorporated it into the Society's Bylaws in 1963. The following is The
Wildlife Society's current Code of Ethics for members:
Each member, in striving to meet objectives of the Society, pledges
to:
1. LSubscribe to the highest standards of integrity and conduct;
2. LRecognize research and scientific management of wildlife and
their environments as primary goals;
3. LDisseminate information to promote understanding of, and
appreciation for, values of wildlife and their habitats;
4. LStrive to increase knowledge and skills to advance the practice
of wildlife management;
5. LPromote competence in the field of wildlife management by
supporting high standards of education, employment, and performance;
6. LEncourage the use of sound biological information in management
decisions; and
7. LSupport fair and uniform standards of employment and treatment
of those professionally engaged in the practice of wildlife management.
Violations of this Code by a member may result in censure, or
censure and suspension, from membership in the Society. All reported
violations are reviewed by a presidentially appointed Board of Inquiry
or by the Council of the Society.
certification
Since 1977 The Wildlife Society has had a program for Certification
of Professional Wildlife Biologists. The Society has long sought to
promote and strengthen professional standards in all activities devoted
to wildlife resources. The certification program was developed to
provide a voluntary peer evaluation of the education and professional
experience of wildlife biologists. Since it's inception, nearly 6,000
individuals have participated in the program, which is open to members
and nonmembers. In addition to describing their education and
experience, applicants must sign a pledge to uphold and conduct their
activities in accordance with a ``Code of Ethics'' and ``Standards for
Professional Conduct.''
The Code of Ethics in the certification program adheres to the
above code of ethics for Society members. The Standards for
Professional Conduct express the intent of the Code of Ethics and
traditional norms for professional service.
Under the Certification program, Associate and Certified Wildlife
Biologists shall conduct their activities in accordance with the Code
of Ethics and the following Standards for Professional Conduct as
prescribed by The Wildlife Society outlined below.
standards for professional conduct
The following tenets express the intent of the Code of Ethics as
prescribed by The Wildlife Society, and traditional norms for
professional service.
Wildlife biologists shall at all times:
1. LRecognize and inform prospective clients or employers of their
prime responsibility to the public interest, conservation of the
wildlife resource, and the environment. They shall act with the
authority of professional judgment, and avoid actions or omissions that
may compromise these broad responsibilities. They shall respect the
competence, judgment, and authority of the professional community.
2. LAvoid performing professional services for any client or
employer when such service is judged to be contrary to the Code of
Ethics or Standards for Professional Conduct or detrimental to the
well-being of the wildlife resource and its environment.
3. LProvide maximum possible effort in the best interest of each
client/employer accepted, regardless of the degree of remuneration.
They shall be mindful of their responsibility to society, and seek to
meet the needs of the disadvantaged for advice in wildlife-related
matters. They should studiously avoid discrimination in any form, or
the abuse of professional authority for personal satisfaction.
4. LAccept employment to perform professional services only in
areas of their own competence, and consistent with the Code of Ethics
and Standards for Professional Conduct described herein. They shall
seek to refer clients or employers to other natural resource
professionals when the expertise of such professionals shall best serve
the interests of the public, wildlife, and the client/employer. They
shall cooperate fully with other professionals in the best interest of
the wildlife resource.
5. LMaintain a confidential professional-client/employer
relationship except when specifically authorized by the client/employer
or required by due process of law or this Code of Ethics and Standards
to disclose pertinent information. They shall not use such confidence
to their personal advantage or to the advantage of other parties, nor
shall they permit personal interests or other client/employer
relationships to interfere with their professional judgment.
6. LRefrain from advertising in a self-laudatory manner, beyond
statements intended to inform prospective clients/employers of
qualifications, or in a manner detrimental to fellow professionals and
the wildlife resource.
7. LRefuse compensation or rewards of any kind intended to
influence their professional judgment or advice. They shall not permit
a person who recommends or employs them, directly or indirectly, to
regulate their professional judgment. They shall not accept
compensation for the same professional services from any source other
than the client/employer without the prior consent of all the clients
or employers involved. Similarly, they shall not offer a reward of any
kind or promise of service in order to secure a recommendation, a
client, or preferential treatment from public officials.
8. LUphold the dignity and integrity of the wildlife profession.
They shall endeavor to avoid even the suspicion of dishonesty, fraud,
deceit, misrepresentation, or unprofessional demeanor.
Violation of either the Code of Ethics or the Standards for
Professional Conduct is a serious matter that reflects unfavorably on
the entire wildlife profession. Accordingly, the certification program
contains a formal process to investigate a charge of misconduct against
anyone who has been certified through a board of inquiry, as well as
disciplinary actions for those found in violation of the Code of Ethics
or Standards for Professional Conduct.
conclusion
Wildlife biologists are highly educated scientists who dedicate
their careers to understanding ecological relationships and to managing
wildlife following the scientific method. Wildlife biologists conduct
their work ethically and professionally. If mistakes are made, they
correct their behavior, as do persons employed in similar professions.
In the rare case where an individual may violate accepted standards,
The Wildlife Society has established disciplinary procedures, through
our membership and certification programs, to ensure that the
credibility of the profession is maintained and that the public
interest is served.
______
Mr. McInnis. Thank you, Mr. Franklin. I will begin the
questioning. Mr. Franklin, I will start with you. Later on
today or tomorrow I will put into the record the names of these
individuals, and I think it is a good sample to send to your
code of ethics board, the names of these individuals, and if in
fact they are members--they may not be--if they are members,
then I would assume that you would institute an investigation
under your code of ethics, based on what you just said.
I think it is highly important that--first of all, I
commend you on the ethics. I think that is what we are looking
for. I think it is highly important that we not only put it
out, that we also follow through, and I would expect that you
will probably do that once you get the names, which will be in
the record,
Mr. McKelvey, let me ask you, I am a little alarmed. I read
on page 6 of your testimony, and I will quote it--have you got
it there? Look, I don't want to take you by surprise. You have
got it memorized, probably.
``Additionally, even though we have protocols to keep the
lynx detection stations out of sight from roads and trails and
to limit the knowledge of their locations, people can and have
planted lynx hair within our survey.''
So I guess we need to know, you gave to me your checks and
balances of DNA and so on, once you get the lynx hair.
Mr. McKelvey. Right.
Mr. McInnis. But apparently you have had people who have
planted lynx hair. Now, how does your lab do the detection on
that? Because the DNA is going to show it is a lynx, obviously.
I mean--
Mr. McKelvey. We have been talking all day about, when I
say we have had people plant hair on our sample, that is what
we have been talking about all day. There is no--
Mr. McInnis. Are you referring to those specific people in
your paragraph on page 6?
Mr. McKelvey. Yes.
Mr. McInnis. That is what you are referring to?
Mr. McKelvey. Yes, absolutely.
Mr. McInnis. These biologists?
Mr. McKelvey. Yes. I know of no others.
Mr. McInnis. OK.
Mr. McKelvey. Because that is one thing. Second, if we get
samples from the woods that come back lynx, that sends us into
protocol No. 2, which is we go out to that area. Now we don't
have to worry about the whole Nation, we have to worry about a
relatively small piece of land where the hit occurred, and we
can go into that place and find out if there is anything there.
Mr. McInnis. And you do that through winter studies or
tracking, winter tracking?
Mr. McKelvey. Yes. To date, we have used these winter
tracking methods because they have been appropriate. If for
some reason in some part of the country that wasn't going to
work, we would move to other methods.
Mr. McInnis. OK, let's assume that these tests or these
samples, the whistle-blower didn't blow the whistle and let us
know what was happening, and your lab verifies that in fact the
DNA, that these were lynx hairs.
Mr. McKelvey. Yes.
Mr. McInnis. And then when we go into this, I guess what
has been referred--not guess, but what has been referred to as
the secondary stage, give me an idea of what that involves, the
time period that that involves.
And I will tell you what I am looking for. My suspicion is
that some of these employees really believed that there were
probably lynx out there, and disagreed with the science and
disagreed with previous findings, and decided that anything
they could do to extend the period or expand the study in hopes
that, one, either a lynx did exist or, two, it gave them more
time to plant evidence, tell me what that secondary stage
involves.
Mr. McKelvey. The secondary stage would go on for a winter,
about 3 months, and at the end of the 3 months, we have
experience now with running this protocol in areas where we
have extremely low densities of lynx. It does seem to be able
to pick them up quite reliably. If we don't get anything, and
if it were a plant, we wouldn't, there would be no tracks
there, then we would just say, ``Well, we don't know what that
was, but it definitely wasn't a population of lynx,'' and my
recommendation would be that we would go back to the initial
survey. We would have no evidence at that point that it was a
plant.
Mr. McInnis. Would you have a firewall between the
employees involved in the submission of the initial samples and
going out on your secondary investigation? In other words, the
people that submitted the first examples wouldn't know where
you would be. You would be doing blind testing as to them. Is
there some firewall in there that keeps them at arm's length?
Mr. McKelvey. To make sure that the same employees weren't
on the winter survey?
Mr. McInnis. Well, that they weren't on it or they didn't
know where your tracking might be, in other words, so it keeps
them at arm's length from having any type of involvement in
that secondary survey.
Mr. McKelvey. On the surveys that we have in place in
Shoshone and the Boise, none of the employees that worked in
the summer are in any way involved with those surveys, and
therefore they would not know their day-to-day snow tracking
routes or anything else.
Mr. McInnis. Well, on this specific case with the
biologists that were involved here, the people that were
involved here, I am a little confused. Maybe you have just
answered it. If in fact the secondary investigation was kicked
in, is there assurance that those people would not have been
involved in any way whatsoever or had knowledge, inside
information, so to speak, of what was being done to confirm the
initial findings of lynx hair?
Mr. McKelvey. I can't--this was a hypothetical question.
Mr. McInnis. But it could have been very realistic if we
had not had a whistle-blower.
Mr. McKelvey. That is true. Mark Rey stated that these
people did not have the expertise to do the snow tracking. That
is correct. We need to bring in different crews to do that.
They have to have a lot of experience in looking at lynx
tracks. They get trained on our lynx telemetry study in
Montana--
Mr. McInnis. All right, but what protocol exists, keeping a
firewall between the first set of employees and the second set,
or the first set of experts and the second set of experts?
Mr. McKelvey. I don't believe there is a formal firewall at
this time. That is something that certainly I think is a good
idea, and I have been investigating our abilities to do that
within hiring laws. I mean, there are certain things that we--
we can't just not hire somebody, you know, for something,
unless we have some reason to do so. So I have been looking
into that possibility and I think it is a very good idea.
Mr. McInnis. Thank you.
Mr. Mills, I have run out of time, so I will make mine,
just one question with you, very brief. With the laboratory and
so on, would there be any reason at all, I mean, did you sense
any weakness in the protocol that would be justifiable reason
for a field biologist to go ahead on their own accord, to go
ahead and start testing the lab? In other words, to give you a
comparable example, is there anything recent at all for the
janitor at the airport to start walking through the metal
detector to test whether or not the metal detector was working?
That is kind of what I am looking for here. Did you sense
any weakness in the protocol that would justify that kind of
action by field biologists?
Mr. Mills. No. In my opinion, there is no justification for
the action that was taken by field personnel.
Mr. McInnis. Thank you.
Mr. Inslee?
Mr. Inslee. Thank you.
Bottom line, I want to make sure I understand your
testimony, can I tell my constituents that this incident or
collection of incidents did not affect the validity of the lynx
study in the State of Washington? Can I tell them that? Can I
ask Mr. Mills and Mr. McKelvey.
Mr. Mills. I would say that the integrity of the lynx study
for the State of Washington is the integrity of the study is
intact.
Mr. McKelvey. I would second that. Not only when we analyze
the samples for that area, the only samples of lynx that showed
up were, in fact, the plant. So we know, at least in 2000, that
that was the extent of the tampering. So that is one thing, got
to the bottom of it, took those people out of the system.
The second thing is that we have backups and follow-ups
which ensure the reliability of the survey should this kind of
behavior happen again.
Mr. Inslee. Dr. Mills, let me ask you about the lab. I will
just tell you kind of my flavor, what I think happened here. I
think there were some lower level biologists or folks who were
collecting samples that, for one reason or another, had doubt
about the efficacy of the lab and took it upon themselves to
test that, to challenge it. Would they, by necessity, would
they have been aware of any other challenge or control system
that the lab would be exposed to? Would those individuals have
been aware of that?
Mr. Mills. I don't know if they would or not. If they asked
me, they certainly would have. If they had looked at the
literature, they certainly would have, but I don't know what
else they might know.
Mr. Inslee. Could you describe, at least briefly, what that
control system or challenge system how that works.
Mr. Mills. Sure, in terms of before we instituted the test
and before I submitted the paper for peer review and
publication, we made sure across the geographic range of all of
the species that always the known species corresponded to the
appropriate identification via the DNA protocol.
We also imposed blind tests such that the technician
running the test did not know the identity of the sample until
after the test was done. We did that both internal to our lab,
and we also did that external to the lab, whereby I sent 20
vialed samples, labeled 1 through 20, to the Fish and Wildlife
Service forensics lab in Ashland, Oregon, sent them the lab
protocol that I developed and said, ``Please use just this
protocol and tell me the identity of these 20 vials.'' They did
that with 100-percent accuracy.
Mr. Inslee. But would your lab get samples that someone
knew were misidentified to challenge your lab?
Mr. Mills. That was what I just exampled. That is a
continual, ongoing process that we continually get known
samples, and we impose our species protocol on those to make
sure that we do, in fact, get the correct identification.
Mr. Inslee. Do you think it would help to make sure that
everybody in this chain of evidence would be aware that you
have got already blind samples? Do you think that would make
sense to make sure everyone is advised of that before they
participate anywhere in this chain to avoid this kind of
problem?
Mr. Mills. Clearly, in retrospect, with the knowledge we
now know, that would be a good idea. However, in my opinion it
should be sufficient to tell field personnel, here is the
protocol, and that should be understood that you don't deviate
from that protocol without informing the principal
investigators.
Mr. Inslee. Thank you.
Mr. Peterson. [Presiding.] Mr. Walden?
Mr. Walden. Thank you very much, Mr. Chairman.
I apologize for having to be gone. I had a bill on the
floor I had to carry, so if this has come out already, stop me.
Has there been any analysis or are you planning to do any
analysis on what this set of shenanigans cost the taxpayers?
Mr. Mills. I would not, personally. I think that that would
be interesting.
Mr. Walden. I would agree, as perhaps an understatement.
Because I think that is an important element. The one thing
that I hear from my constituents when I go home, there is no
accountability in this process. And when it comes out, and
again I missed part of this, unfortunately, and I will get with
Mr. Rey later perhaps, but about there is this report they got
paid more, and they have been counseled. I cannot explain that
to people that I represent how that behavior is allowed to go
on.
These people, frankly, from my perspective, we ought to
pass a law here that holds them personally accountable for the
costs, since they tried to jury-rig the findings.
Do we know if these same people who submitted the false
data have participated in other information-gathering,
collection, analysis processes on other species?
Mr. McKelvey. I have no information about these
individuals.
Mr. Walden. Would you be in a position to find that out or
is that somebody else I need to address that to?
Mr. McKelvey. I would think that Region 6 would be the
proper individuals. That is who they work for.
Mr. Walden. I intend to follow up because I guess when you
see one of these, you say, ``If they did it here, did they do
it anywhere else?'' And that is a question I have been asked
all over Eastern Oregon because we are under that lynx habitat.
Dr. Mills, I find the question interesting from my--well,
he is gone--my colleague from Washington that somehow I was
getting to feel like, you know, blame the victim here because
maybe these people should have been told there were these false
samples, but the GAO report, have you had a chance to review
that yet today?
Mr. Mills. No, I haven't.
Mr. Walden. Because they say very clearly that the
scientists knew that the protocol for the national survey did
not provide for such action, the action they took, and that
they did not have the authority to make these submissions, and
they were aware that they had alternatives for testing the
laboratory other than submitting samples as part of the survey.
So I find it incredible to somehow say we ought to have a
different system here when, in fact, the people engaged in this
action admitted to the GAO they knew what they were doing was
in violation of the protocols and that there were other ways to
test the system. I just share that with you.
I guess for the benefit of the Committee, going back to
1998, the Oregon Fish and Wildlife Office, Department of Fish
and Wildlife, raised issues about the proposed Federal listing
of the threatened species of the lynx in the Northwest, and
they went through and commented on what was in the Federal
Register. And they pointed out that there is no data that
exists to support the idea that lynx ever bred in Oregon; even
though somebody to tried to classify them as a fur bearer, they
are not classified as such in Oregon; there is no evidence of a
breeding population historically; no supportive evidence or
reasons to list the lynx in Oregon when considering the listing
criteria in Section 4 of the Endangered Species Act, and yet
you know when all of this talks about lynx occurs, the habitat
is huge.
What we tend to think of is that there may have been some
that wandered down from the North when they were overpopulated
some year, but they have never bred, they have never been
native particularly to our region.
I guess the real issue for me is, as we learn about this
potential falsification, well, the falsification of data, it
really causes problems to the credibility of the Service and to
the good people in the Service who are doing honest work, and I
can't say that strongly enough, that I know there are a lot of,
99.9 percent are doing the right thing, following the
protocols. And so when this kind of action happens, it just
throws everything into question. It makes it very difficult to
rely on the data.
With that, Mr. Chairman, I will yield back.
I understand that Mr. Rey would come back to the table if I
would like those questions answered.
Mr. Peterson. Yes, Mr. Rey, if you would like to just come
back to either side, whichever side you are comfortable on, and
take the first chair, you can sit at a member's chair there
temporarily.
Mr. Walden. I apologize again for having--
Mr. Peterson. That is all right there. That is OK. You are
more comfortable there. I was going to give you a member's
chair.
Mr. Rey. There is too great a chance to get into even more
trouble up there.
[Laughter.]
Mr. Peterson. Please proceed, Mr. Walden.
Mr. Walden. I guess the question is are you going to
pursue--I realize you inherited this. I understand you have not
been on the job long, but this whole issue, what did this cost
us, and what about accountability? And I was not here if you
did talk about the so-called bonuses and all of that. Can you
run back through that for me.
Mr. Rey. First off, we can get you an estimate of what the
investigations, both the Forest Service investigation, as well
as the IG investigations, have cost the taxpayers. I don't have
that information now. In fact, the IG investigation isn't
complete, so we wouldn't be able to get you that information at
the present time.
Mr. Walden. If I can interrupt you, I am not talking about
just those two investigations. I am talking about if they
falsified these data and a process occurred, a lab had to do an
analysis, and then you had to back out of that, and those lab
analyses are not cheap, I don't think.
Mr. Rey. I think we can get you a rough estimate of what
the total monetary costs of this have been so far.
Just for a basis of comparison, the 3-year cost of the
survey to date is $1.6 million. So we have obviously had some
additional costs as a consequence of the misrepresented data. I
am guessing it will be a fraction of that. In addition, we will
get you the amount of the investigators' costs as well.
With regard to the Forest Service, let me clarify the
record. We did not provide monetary merit bonuses to any of the
employees that were involved. One person is retired, so that
was not an issue with that person. The only awards that were
given were a nonmonetary, that is to say, nonmoney award for a
different project, under $200 in value, and that was awarded
prior to the information about the lynx survey coming to the
fore.
Mr. Walden. OK.
Mr. Rey. We have reviewed the projects that the three
Forest Service biologists were involved in prior to the lynx
survey, and we have reviewed the work that two of the three
have been involved in since. The one that retired is obviously
not any longer relevant in that respect.
We did take them off of the lynx project. That was one of
the measures that was taken once this came to light. Neither of
the projects that they were involved in previously, nor their
work in the projects that they have been involved in
subsequently, lend themselves, on the basis of the specific
activities to which they were assigned, to cause us to call
into question the integrity of the overall project they were
involved in.
Mr. Walden. What about the issue of accountability?
Mr. Rey. The issue of accountability is the subject of both
the first investigation, as well as the second, and the key
issue, as I see it, is the motivation of these individuals. The
first investigation concluded that their motivation was, as it
was described by GAO, simply to test the lab, although GAO was
uncertain as to whether the evidence supported that conclusion.
We have asked the IG to look more fully into that to satisfy
ourselves that that was, in fact, their motivation or that
there is no evidence to the contrary.
The subsequent issue of whether the remedies that have been
applied thus far are sufficient to hold them accountable for
their actions will I think have to await the completion of the
IG's work.
Mr. Walden. I understand.
Mr. Rey. Now, more broadly, since this issue has come to
light, we have expanded the Code of Ethics developed by Forest
Service researchers in 1998 to all Forest Service employees,
and contractors, and cooperators involved in research projects.
These biologists were not researchers. They were field
assistance providing some assistance to a research project.
Under that Code of Ethics, as it would now be applied to
all Forest Service employees involved in a research project,
falsification of data would be something that would be
responded to with a letter of reprimand or dismissal, even in
the first instance, without regard to the motivation involved,
and the rationale for applying that remedy is that credibility
is easy to lose and hard to regain.
Mr. Walden. Yes.
Thank you, Mr. Chairman.
Mr. Peterson. Thank you.
So if the motivation is pure, it is OK to ignore the
protocol?
Mr. Rey. No, that is not the case. It is not a question of
whether their motivation was pure or impure, the actions were
wrong-headed and wrong.
The question is was there maliciousness or conspiracy to
expand the range of lynx habitat by these actions or was their
motivation, as they said, a wrong-headed effort to test the
voracity or the accuracy, I am sorry, of the lab results.
Mr. Peterson. I don't buy that for a minute. I mean, that
is a stretch, in my view.
Mr. Rey. That seems to be a pretty widely held view, but at
the same time, the difficulty in the lab results of the
previous survey, not the one that you have just heard about,
would provide at least some credence to the explanation that
the failure to find positive results was something that these
folks believed to be warranted a test.
Now, having said that, that doesn't excuse the action. The
action was wrong. The question is was there a motivation which
increased, which by its necessity should increase the penalties
that are meted out, and that is a question that is still on the
table to be resolved by the OIG investigation.
Mr. Peterson. Thank you. Mr. Rey, while you are still here,
we share the interests in reviewing and streamlining the entire
natural resource decisionmaking process. Will this general
review include a look at the credibility and ethics within the
Agency?
Mr. Rey. The credibility of the Agency is something that is
at issue here and is tied into any changes we make in our
management processes. The question of Agency employee ethics is
one that I think, for at least the time being, we have achieved
a resolution to, and we are eager to hear from anyone who
believes the Code of Ethic, which was implied to all Forest
Service employees involved in research exercises, is adequate.
We think it is a pretty strongly worded and tightly written
Code of Ethics.
Mr. Peterson. Thank you very much.
Now I am going to switch to Mr. McKelvey. When do you
expect to publish the final results?
Mr. McKelvey. We have one more year of the survey. That
will give us 3 years of data on most sites. There may be a few
that we don't have 3 years on, but at that point, we will
evaluate the results, including the results from the test
areas, which are areas where we know there are lynx. Based on
those results, we can determine the efficacy of the survey at
finding lynx, where they are, and thereby evaluate the results
where they do not find lynx, and we will publish at that time.
Mr. Peterson. What do you think the total cost will be when
this is finished?
Mr. McKelvey. I believe the cost per year is about $700,000
to run the survey nationwide, and that includes all costs,
including in-kind contributions from the Forest.
Mr. Peterson. So it will be in excess of $2 million.
Mr. McKelvey. What?
Mr. Peterson. In excess of $2 million.
Mr. McKelvey. I believe so.
Mr. Peterson. Mr. Mills, were you ever contacted by anyone
regarding concerns about the protocols?
Mr. Mills. No.
Mr. Peterson. Were concerns brought to your attention that
the information you presented was not the same as the Weaver
study result?
Mr. Mills. Nothing formally. I heard rumblings that, wow,
you got different results from the Weaver result, but I never
got any formal, ``This is a concern. Please tell me more.''
Mr. Peterson. Thank you.
Mr. Franklin, in your opinion, since Dr. Weaver's 1999 data
has proven unverifiable, do you think that the Fish and
Wildlife Service should take another look at the March rule on
developing a Canadian lynx habitat?
Mr. Franklin. I am not sure there is justification for
reevaluating whether the Canada lynx habitat--no, I can't
really make that statement here.
Mr. Peterson. Thank you very much.
I want to thank the panel, and I want to thank the former
panels.
I thank the witnesses on the third panel for their insights
and the members for their questions. The members of the
Committee may have some additional questions for the witnesses,
and we ask you to respond to those in writing. The hearing
record will be held open for 10 days for those responses.
If there is no further business before the Committee, I
will thank the members of the Committee and our witnesses, and
this meeting does stand adjourned.
[Whereupon, at 1:42 p.m., the Committee was adjourned.]
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