[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
CRISIS OF CONFIDENCE: THE POLITICAL INFLUENCE OF THE BUSH
ADMINISTRATION ON AGENCY SCIENCE AND DECISION-MAKING
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
Tuesday, July 31, 2007
__________
Serial No. 110-38
__________
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Chris Cannon, Utah
Frank Pallone, Jr., New Jersey Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin Jeff Flake, Arizona
Islands Stevan Pearce, New Mexico
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam Cathy McMorris Rodgers, Washington
Jim Costa, California Bobby Jindal, Louisiana
Dan Boren, Oklahoma Louie Gohmert, Texas
John P. Sarbanes, Maryland Tom Cole, Oklahoma
George Miller, California Rob Bishop, Utah
Edward J. Markey, Massachusetts Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon Dean Heller, Nevada
Maurice D. Hinchey, New York Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island Doug Lamborn, Colorado
Ron Kind, Wisconsin Mary Fallin, Oklahoma
Lois Capps, California Kevin McCarthy, California
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South
Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Jeffrey P. Petrich, Chief Counsel
Lloyd Jones, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Tuesday, July 31, 2007........................... 1
Statement of Members:
Brown, Hon. Henry E., Jr., a Representative in Congress from
the State of South Carolina................................ 7
Christensen, Hon. Donna M., a Delegate in Congress from the
Virgin Islands............................................. 19
Prepared statement of.................................... 19
DeFazio, Hon. Peter A., a Representative in Congress from the
State of Oregon............................................ 7
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 22
Holt, Hon. Rush D., a Representative in Congress from the
State of New Jersey........................................ 22
Lamborn, Hon. Doug, a Representative in Congress from the
State of Colorado.......................................... 8
Miller, Hon. George, a Representative in Congress from the
State of California........................................ 6
``Timeline--DOI dates of interest'' submitted for the
record................................................. 64
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California.................................... 20
Prepared statement of.................................... 21
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 1
Prepared statement of.................................... 3
Rodgers, Hon. Cathy McMorris, a Representative in Congress
from the State of Washington............................... 3
Prepared statement of.................................... 5
Statement of Witnesses:
Doolittle, Hon. John T., a Representative in Congress from
the State of California.................................... 29
Prepared statement of.................................... 30
Hall, H. Dale, Director, U.S. Fish and Wildlife Service
(USFWS), U.S. Department of the Interior................... 76
Prepared statement of.................................... 78
Herger, Hon. Wally, a Representative in Congress from the
State of California........................................ 31
Prepared statement of.................................... 32
Hogarth, William T., Assistant Administrator, National Marine
Fisheries Service, National Oceanic & Atmospheric
Administration, (NOAA), U.S. Department of Commerce........ 81
Prepared statement of.................................... 83
Kelly, Mike, Former USFWS and NOAA Fisheries Biologist....... 103
Prepared statement of.................................... 104
Additional testimony submitted for the record............ 115
Kendall, Mary, Deputy Inspector General, U.S. Department of
the Interior............................................... 45
Prepared statement of.................................... 47
Lewis, William M., Jr., Former Chairman of the National
Academies of Sciences' Committee on Endangered and
Threatened Fishes in the Klamath River Basin............... 99
Prepared statement of.................................... 100
Seeba, John M., Assistant Inspector General for Auditing,
U.S. Department of Commerce................................ 48
Prepared statement of.................................... 50
Thompson, Hon. Mike, a Representative in Congress from the
State of California........................................ 33
Walden, Hon. Greg, a Representative in Congress from the
State of Oregon............................................ 22
Prepared statement of.................................... 27
Additional materials supplied:
Allard, Hon. Wayne, a U.S. Senator from the State of
Colorado, Letter to Secretary Kempthorne submitted for the
record by The Honorable Doug Lamborn....................... 13
DellaSala, Dominick A., Ph.D., Chief Scientist and Executive
Director, National Center for Conservation Science &
Policy, Statement submitted for the record by The Honorable
Jay Inslee................................................. 129
Devaney, Earl E. Inspector General, U.S. Department of the
Interior, Letter to Senator John F. Kerry submitted for the
record by The Honorable Greg Walden........................ 23
Fallon, Sylvia, Ph.D., Staff Scientist, Endangered Species
Project, Natural Resources Defense Council, Letter
submitted for the record................................... 146
Olson, Gail S., Ph.D., Letter submitted for the record by Dr.
DellaSala.................................................. 139
Pollock, Josh, Conservation Director, Center for Native
Ecosystems, Letter submitted for the record................ 142
Ramey, Rob Roy, II, Ph.D., Statement submitted for the record
by The Honorable Doug Lamborn.............................. 9
Smithson, Julie Kay, Property Rights and Resource
Utilization/Resource Providing Researcher, London, Ohio,
Statement submitted for the record......................... 144
Tate, James, Ph.D., Science Advisor to the Office of the
Secretary, Water and Science. Comments submitted for the
record by Dr. DellaSala.................................... 141
Wetzler, Andrew E., Director, Endangered Species Project,
Natural Resources Defense Council, Letter submitted for the
record..................................................... 145
OVERSIGHT HEARING ON ``CRISIS OF CONFIDENCE: THE POLITICAL INFLUENCE OF
THE BUSH ADMINISTRATION ON AGENCY SCIENCE AND DECISION-MAKING.''
----------
Tuesday, July 31, 2007
U.S. House of Representatives
Committee on Natural Resources
Washington, D.C.
----------
The Committee met, pursuant to call, at 10:00 a.m. in Room
1324, Longworth House Office Building, Hon. Nick J. Rahall
[Chairman of the Committee] presiding.
Present: Representatives Rahall, McMorris Rodgers, Kildee,
Christensen, Napolitano, Holt, Grijalva, Sarbanes, DeFazio,
Kennedy, Capps, Inslee, Baca, Bordallo, Duncan, Cannon, Brown,
Sali, and Lamborn.
STATEMENT OF HON. NICK J. RAHALL, A U.S. REPRESENTATIVE FROM
THE STATE OF WEST VIRGINIA
The Chairman. The Committee on Natural Resources will come
to order, please. The Committee is convening today in light of
unsettling reports about officials within the administration
who are tweaking scientific data in order to advance a
political agenda.
It is a practice, quite honestly, worthy of the Middle
Ages, when the pioneers of astronomy were forced by officials
of the time to recant their science and to swear that the Earth
was flat. That such a ludicrous disregard for the truth is
being allowed to influence our public policy today is simply
untenable.
Our government is fortunate to have forces of individuals,
of scientists, earnestly heading to work each day to provide
their expertise for the betterment of our nation. These learned
men and women have proudly put their good minds to use in
public service so that government decisions can be enlightened
by fact.
But this administration possesses a troubling willingness
to disregard, or even to undermine, the science if it
interferes with its political agenda. At Interior, we have
witnessed time and again how such meddling compromises
America's treasury of natural resources and undercuts the trust
of the American people in their elected government. Instances
of highly placed officials berating and twisting the arms of
already fearful and demoralized, lower-level scientists in a
host of agencies are numerous and continuing to come to the
surface.
For example, Sunday's front page Washington Post article
about unelected, unaccountable bureaucrats suppressing public
health reports is only the latest in a string of stories that
ought to outrage every American citizen.
The fiasco at the Klamath River Basin is a case study in
the political heavy-handedness so prevalent throughout this
administration. Their political intervention wreaked havoc on
the balance of wildlife, land, water, economy, and livelihoods
of an entire region.
While political tinkering has long been fingered as a
culprit in this disaster, it was only recentLY that a
Washington Post article traced the strings to the Vice
President of the United States of America, behind the doors of
executive privilege.
This Committee invited the Vice President to appear today.
I will not pretend to be surprised that he declined our
invitation, but I am obliged to express disappointment at the
difficulty we have had in trying to learn the truth and conduct
basic oversight over an agency within the administration and an
administration that has made secrecy and lack of accountability
hallmarks of its tenure.
At the very least, we could have expected the Secretary of
the Interior, Dirk Kempthorne, to come before the Committee.
The Secretary, who I have publicly commended many times as
wanting to get to the bottom of the culture of corruption at
the Department of the Interior, he who has repeatedly claimed a
desire to clean up his agency's ethical lapse. He was invited.
He was provided a chance to help restore some of the lost
integrity, transparency, and accountability to the management
of our natural resources, but, unfortunately, he also declined.
When it comes to political interference and ethical lapses
at the Department of the Interior, Klamath River is just the
tip of the iceberg. The recent announcement by the agency that
it will revisit a list of eight decisions pertaining to
endangered species should be welcome news to this Committee,
which has pressed so hard for a renewed look at the work of
Julie MacDonald and others. But one has to question the methods
used to determine which decisions to revisit.
I have little confidence that this latest action is
anything more than another on the long, distressing list of
actions taken by this agency, merely for the sake of appearing
to correct its ethical lapses.
I find it difficult to see how we can trust any decision
made in an agency that has, time and again, betrayed its own
career scientists, repeatedly failed to hold its appointees to
ethical standards, and has so callously disregarded its mission
for the sake of political gain.
The stewardship of God's creatures and America's most
sacred landscapes should be a selfless endeavor informed by the
moral responsibility and scientific understanding.
By bringing these issues into the public forum of this
hearing today and others, we may yet prevent the people's lack
of confidence in their government from reaching critical mass.
I now recognize the acting Ranking Member, the gentlelady
from Washington, Mrs. McMorris Rodgers.
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, II, Chairman,
Committee on Natural Resources
The Committee on Natural Resources convenes today in light of
unsettling reports about officials within the Administration who are
tweaking scientific data in order to advance a political agenda. It is
a practice worthy of the Middle Ages, when the pioneers of astronomy
were forced by officials of the time to recant their science, and to
swear that the Earth was flat. That such a ludicrous disregard for the
truth is being allowed to influence our public policy today is
untenable.
Our government is fortunate to have forces of scientists, earnestly
heading to work each day to provide their expertise for the betterment
of our Nation. These learned men and women have proudly put their good
minds to use in public service, so that government decisions can be
enlightened by fact.
But this Administration possesses a troubling willingness to
disregard or even to undermine the science, if it interferes with its
political agenda. At Interior, we have witnessed, time and again, how
such meddling compromises America's treasury of natural resources and
undercuts the trust of the American people in their elected government.
Instances of highly placed officials berating and twisting the arms
of already fearful and demoralized lower level scientists in a host of
agencies are numerous and continually surfacing. Sunday's front-page
Washington Post article, about unelected, unaccountable bureaucrats
suppressing public health reports is the latest in a string of stories
that ought to outrage every American citizen.
The fiasco at the Klamath River Basin is a case study in the
political heavy-handedness so prevalent throughout this Administration.
There, political intervention wreaked havoc on the balance of wildlife,
land, water, economy and livelihoods of an entire region.
While political tinkering has long been fingered as a culprit in
this disaster, it was only recently that a Washington Post article
traced the strings to the Vice President, behind the doors of executive
privilege.
This Committee invited the Vice President to appear today. I will
not pretend to be surprised that he declined our invitation. But I am
obliged to express disappointment at the difficulty we have in trying
to learn the truth and conduct basic oversight over an agency and an
Administration that have made secrecy and lack of accountability
hallmarks of their tenure.
At the very least, we would have expected Secretary of the Interior
Dirk Kempthorne to come before the Committee. The Secretary, who has
repeatedly claimed a desire to clean up his agency's ethical lapses,
was invited. He was provided the chance to help restore some of the
lost integrity, transparency, and accountability to the management of
our natural resources. But he also declined.
When it comes to political interference and ethical lapses at the
Department, Klamath River is just the tip of the iceberg. The recent
announcement by the agency that it will revisit a list of eight
decisions pertaining to endangered species should be welcome news to
this Committee, which has pressed so hard for a renewed look at the
work of Julie MacDonald and others. But one has to question the methods
used to determine which decisions to revisit. I have little confidence
that this latest action is anything more than another on the long,
distressing list of actions taken by this agency merely for the sake of
appearing to correct its ethical lapses.
I find it difficult to see how we can trust any decision made in an
agency that has, time and again, betrayed its own career scientists,
repeatedly failed to hold its appointees to ethical standards, and so
callously disregarded its mission for the sake of political gain.
The stewardship of God's creatures and America's most sacred
landscapes should be a selfless endeavor--informed by the moral
responsibility and scientific understanding. By bringing these issues
into the public forum of this hearing and others, we may yet prevent
the people's lack of confidence in their government from reaching
critical mass.
______
STATEMENT OF HON. CATHY McMORRIS RODGERS, A U.S. REPRESENTATIVE
IN CONGRESS FROM THE STATE OF WASHINGTON
Mrs. McMorris Rodgers. Thank you, Mr. Chairman. The title
of today's agenda suggests that there is a crisis in confidence
when it comes to the Endangered Species Act and other
environmental laws and the way that they have been carried out.
I could not agree more, but for different reasons than outlined
by Chairman Rahall.
The area that I represent in eastern Washington is the
poster child of how many people have lost confidence in the
Endangered Species Act. Like everyone, hard-working folks in
eastern Washington agree with the goals of the ESA and are
trying to do their part. However, when a judge virtually rules
our rivers, and, in one case, mandates a policy that led to the
expenditure of almost $4 million per salmon with little to
show, it begs the question of whether the ESA really works as
it was intended.
Meanwhile, electricity ratepayers pay over a quarter of
their monthly bills toward endangered salmon, and there is
little progress in determining success and settling this issue.
We need to protect species and our way of life with science,
collaboration, and results-driven measures, but there is no
confidence in eastern Washington that our current endangered
species law, which encourages legal conflict and blunt judicial
force, can do that.
We have been told that the heart of this hearing is over
the Klamath Basin controversies detailed in the Washington Post
article. Although the article generated political intrigue and
buzz inside the beltway, you will find this truth today, that
there was no improper political meddling in the Klamath
decision-making process, and independent, peer-reviewed science
trumped all in the end.
If the point of this hearing is to find a crisis of
scientific confidence, just talk to the Klamath project
irrigators, who experienced a devastating water shutoff, only
to find later that the scientists and the biologists got it
wrong in the first place.
Despite the loose allegations and inferences that Dick
Cheney's actions led to an historic fish kill, you will hear
that there is no scientific proof of this either.
Mr. Chairman, the only smoking gun you will find here today
is that the ESA has been broken for decades and urgently needs
to be updated for the benefit of people and species.
If you continue to focus on Klamath, our Committee
resources could be better spent on the positive discussions and
negotiations going on now on the Klamath Basin. A field hearing
at a neutral location may actually help these parties move past
the goal line and find a resolution, as opposed to the
unproductive blame game that could go on today.
The last time this Committee held a field hearing on this
issue, the area SWAT team was on standby. You will find that
times and attitudes have changed, if and when you actually hold
a field hearing on this positive development.
Finally, Mr. Chairman, I will take you at your word that
you want to find the truth on all of these matters before us. I
am sure the name, Julie MacDonald, will come up today, and I
hope she does because the American people deserve to know more
about this situation. I am sure the public does not know that
this grandmother never had the chance to refute the allegations
levied against her and that there could be more sides to this
story.
She has been unfairly called a future ``convict'' by a
senior Member of this Committee, but there is no basis for such
irresponsible talk, especially when the Inspector General found
she did nothing illegal.
Mr. Chairman, the public deserves the right to know the
facts. As such, I ask that you join me in requesting the
Interior Department release all of her e-mails as relates to
her activities detailed in the Inspector General's report.
I very much look forward to this hearing and hope we can
work together to separate fact from fiction. Thank you, Mr.
Chairman.
[The prepared statement of Mrs. McMorris Rodgers follows:]
Statement of The Honorable Cathy McMorris Rodgers, a Representative in
Congress from the State of Washington
The title of today's agenda suggests there's a ``Crisis of
Confidence'' when it comes to how the Endangered Species Act and other
environmental laws have been carried out. I couldn't agree more, but
for quite different reasons than the ones outlined by Chairman Rahall.
The area I represent in Eastern Washington is the poster child of
how many people have lost confidence in the ESA. Like everyone, hard-
working folks in Eastern Washington agree with the goals of the ESA and
are trying to do their part, however when a Judge virtually rules our
rivers and, in one case, mandates a policy that led to the expenditure
of almost $4 million dollars per salmon and with little to show, it
begs the question of whether the ESA really works as it was intended.
Meanwhile, electricity ratepayers pay over a quarter of their
monthly bills towards endangered salmon and there's little progress in
settling this issue and determining success. We need to protect species
and our way of life with science, collaboration and results-driven
measures, but there is no confidence in Eastern Washington that our
current endangered species law--which encourages legal conflict and
blunt judicial force--can do that.
We've been told that the heart of this hearing is over the Klamath
basin controversies detailed in a Washington Post article. Although the
article generated political intrigue and buzz inside the Beltway, you
will find this truth today: that there was no improper political
meddling in the Klamath decision-making process and independent peer-
reviewed science trumped all in the end.
If the point of this hearing is to find a crisis of scientific
confidence, just talk to the Klamath Project irrigators who experienced
a devastating water shut-off only to find later that the scientists and
biologists got it wrong in the first place. Despite the loose
allegations and inferences that Dick Cheney's actions led to a historic
fish kill, you will hear that there's no scientific proof of this
either. Mr. Chairman, the only smoking gun you will find here today is
that the ESA has been broken for decades and urgently needs to be fixed
for the benefit of people and species.
If you continue to focus on Klamath, our committee resources could
be better spent on the positive discussions and negotiations going on
now in the Klamath basin. A field hearing at a neutral location may
actually help these parties move past the goal line in finding
resolution as opposed to the unproductive blame game that could go on
today. The last time this Committee held a field hearing on this issue,
the area SWAT team was on standby. You will find that times and
attitudes have changed if and when you actually hold a field hearing on
this positive development.
Finally, Mr. Chairman, I will take you at your word that you want
to find the truth on all of these matters before us today. I'm sure the
name of Julie McDonald will come up today and I hope she does because
the American people deserve to know more about this situation. I'm sure
the public doesn't know that this grandmother never had a chance to
refute the allegations levied against her and that there could be many
sides of the story. She has been unfairly called a future ``convict''
by a senior member of this Committee already, but there's no basis for
such irresponsible talk, especially when the Inspector General found
that she did nothing illegal. Mr. Chairman, the public deserves the
right to know the facts. As such, I ask that you join me in requesting
that the Interior Department release all of her emails as it relates to
her activities detailed in the Inspector General's report. (Pause, look
at Chairman and try to get his commitment).
I very much look forward to this hearing and hope that we can work
together to separate fact from fiction.
______
The Chairman. The Chair would just note for the record
that, since Julie MacDonald's name has been mentioned--I
brought her up first--we had scheduled to invite her, but she
resigned one week before our hearing was held.
The Chair recognizes the gentleman from California, Mr.
Miller.
STATEMENT OF HON. GEORGE MILLER, A U.S. REPRESENTATIVE FROM THE
STATE OF CALIFORNIA
Mr. Miller. I thank the Chairman, and I want to thank you
very much for this hearing. I think this is an important
hearing.
I appreciate that people have different opinions about the
Endangered Species Act and different views on how it should or
should not be implemented, but I think what this hearing points
out is what you should not have is you should not have
political appointees tramping through the scientific findings
and overriding the scientific findings and seeking to withhold
scientific evidence from the determinations that are made.
As we tragically found out in the Klamath case, this led to
a disaster, not just for that particular salmon run at that
time but also for people up and down the Pacific coast who had
their small businesses threatened, who had their livelihoods
threatened, and ended up--I think our share of the bill was
about $60 million to overcome those decisions that were hastily
put together to justify the diversions of that water.
In the area that I represent, the San Francisco-Sacramento
Delta, we now have a whole series of contracts that have been
signed, we have decisions that have been made, we have plans
that are being developed, and we find out that the underlying
science on which those decisions are being made now has to be
completely redone.
This is one of the last great delta systems in the world,
but it is also a huge economic generator, it is a huge
environmental generator for mid-California, and it is also the
water supply for tens of millions of Californians, and how we
are able to administer that, how we are able to run it to
balance the interests of our state, we are required to have the
best science available to us, and the public record is starting
to strongly suggest that that was not the case.
Having Ms. MacDonald walk through these political offices,
send information to opposing parties to lawsuits, to override
scientists, to get people to withhold information is not how we
should administer it. If you do not like the law, change the
law, just change the law. Come through the democratic process
and change the law.
This Committee had a number of false starts over the last
several years in that effort. That does not mean that we
should, therefore, stop. I, too, have raised problems and
concerns and worked, on a bipartisan basis, on a number of
efforts to change the Endangered Species Act, but because we
have not been successful does not mean that people get to
violate the law. It does not mean that people get to violate
ethical standards. It does not mean people get to embrace
conflicts of interest, and it does not mean that political
appointees get to override the science because it does not work
for them or one of their clients, and that is what this hearing
is about. Mr. Chairman, I thank you very much for holding it.
The Chairman. The gentleman from South Carolina, Mr. Brown.
STATEMENT OF HON. HENRY E. BROWN, JR., A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF SOUTH CAROLINA
Mr. Brown. Thank you, Mr. Chairman. As I understand the
situation in Klamath River Basin that we are talking about
today, you have three protected fish species managed by two
different agencies. The fish species have two very different
water needs. The two related species need water kept in the
Klamath Lake, and the other needs water spilled over the river.
On top of that, you have agricultural water needs for farms and
farmers that have been in the area for almost 100 years.
This is a recipe for difficult decisions. Even figuring out
the right thing to do scientifically for two different fish
species is a very difficult task. All of the affected Klamath
River Basin constituent groups--fishermen, agriculture users,
tribes, scientists, and government officials--have been at the
negotiating tables for some time now.
I find it disconcerting that some people may be viewing
this hearing as a way to disturb these delicate negotiations
and assert political partisanship into this important issue.
As I understand it, the decision to hold this hearing was
based on a newspaper article that claimed that there were
political influences brought to bear on this issue almost five
years ago.
Mr. Chairman, since 2001, the Bush administration has
invested over $500 million in the 10-million-acre, Klamath
River Basin watershed for habitat restoration, water quality
improvement, and water conservation. Tremendous progress has
been made, and while much work remains to be done in the
process, it has been very positive after years of no action by
the prior administration.
Western water issues are complicated and are made even more
so when protected fish species compete for water. Well, let us
not play party politics on issues as important as fisheries
restoration and conservation when people are at the table
trying to resolve these difficult issues.
Thank you, and I look forward to hearing the testimony from
our witnesses.
The Chairman. The gentleman from Oregon, Mr DeFazio.
STATEMENT OF HON. PETER A. DeFAZIO, A U.S. REPRESENTATIVE FROM
THE STATE OF OREGON
Mr. DeFazio. I thank the Chairman, thank him for calling
this important hearing. You know, like many issues that pertain
to natural resources in the West, this engenders a tremendous
amount of emotion because we are dealing with life and death
decisions, life and death decisions in terms of both citizens
of our nation and how they make their living and how their
communities prosper, and life and death decisions in terms of
the future of our environment and the integrity of it.
Quite a number of years ago, a little more than a decade, I
supported a bipartisan proposal to deal with some of the
problems with the Endangered Species Act offered by Mr. Saxton
and Mr. Gilchrest. Instead, Mr. Pombo and Mr. Young chose to
make mischief and create something that was, at best,
laughable, which was so embarrassing, Newt Gingrich would never
even bring it to the Floor of the House.
So there has been no good-faith effort from many on the
other side of the aisle to deal with these issues, only a few,
who were then stomped on by their leadership, both in terms of
what positions they were given on Committees and, in that case,
in terms of offering an honest alternative.
I hope we can get back to honest alternatives here, but
this administration, as will come out in this hearing, has
specialized in polarization, to take people who are frightened
and worried about their future, manipulate them politically,
get the election results, and then throw them in the trash bin.
They have done it to my timber workers and my timber
communities. They did it to the farmers in the Klamath Basin.
They have done it to the fishers on the Oregon coast and the
California coast time and time again.
These people, I believe, are no longer be suckered in, and
they want to see some real solutions and some real forward
movement on these issues. I would be thrilled to have Ms.
MacDonald come before this Committee and explain how she
manipulated the process and why they have to revisit eight
major decisions because of her manipulation.
I doubt that she would come, or perhaps, like Harriet
Miers, the President would claim executive privilege, and she
would not be allowed to come. But I would urge the Committee to
extend the invitation, and then Mrs. McMorris Rodgers would
have an opportunity to defend the good name Julie MacDonald
before this Committee.
I think that would be a very difficult task because she has
put in place a number of slow-motion train wrecks on yet more
critical issues to favor a few special interests but, in the
end, to come up with productive result that will withstand
public scrutiny and legal scrutiny, and that is very
unfortunate.
I hope this Committee can get these things righted and
begin to put us on a more sustainable path, legally,
environmentally, and socially, for the people who live in the
West. Thank you, Mr. Chairman.
The Chairman. The gentleman from Colorado, Mr. Lamborn.
STATEMENT OF HON. DOUG LAMBORN, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Lamborn. Thank you, Mr. Chairman, and thank you for
this opportunity to address some of the issues involving the
process of listing species under the Endangered Species Act.
While we may not be coming from the same perspective, I do
agree that there are many opportunities to address the issues
surrounding the listing or delisting of species. In particular,
Colorado and Wyoming have been significantly impacted by the
decision by the Fish and Wildlife Service to list the Preble's
meadow jumping mouse.
In keeping with today's theme, I would ask unanimous
consent that the written testimony, which I will provide to the
Committee, of Dr. Rob Roy Ramey, a scientist closely involved
in the Preble process, be submitted as part of this hearing so
that both sides can have a full opportunity to be heard.
The Chairman. Without objection, at the proper place in the
hearing record, it will be made part of the record.
[The statement of Dr. Rob Roy Ramey submitted for the
record by Mr. Lamborn follows:]
Statement submitted for the record by Rob Roy Ramey II, Ph.D.
My qualifications
As a field biologist and conservation geneticist, I have 27 years
of experience in conservation, research and management of threatened
and endangered wildlife. I have worked with: peregrine falcons;
California condors; goshawks; rainforest birds; desert, Sierra Nevada,
and Rocky Mountain bighorn sheep, argali sheep of Asia, meadow jumping
mice, and African elephants. I have studied parasites and pathogens
including: Psoroptic scabies mites; respiratory bacteria, and HIV. I
earned a Ph.D. from Cornell University in Ecology and Evolutionary
Biology; a master's degree from Yale University in Wildlife Ecology;
and a bachelor's degree in Biology and Natural History from the
University of California Santa Cruz. My postdoctoral experience
included research at University of Colorado, Boulder and as a visiting
scientist at the Center for Reproduction of Endangered Species at the
San Diego Zoo. I was Curator of Vertebrate Zoology at the Denver Museum
of Nature & Science and served as a consulting Science Advisor to the
Office of the Assistant Secretary of the Interior in Washington, D.C. I
am member of the Caprinae Specialist Group at the International Union
for the Conservation of Nature (IUCN). I presently consult on
endangered species scientific issues and conduct scientific research
with Wildlife Science International, Inc.
Introduction
This hearing is focused on questionable actions of the current
administration relative to science. However, to avoid science falling
prey to partisan politics, there is a need to focus briefly on the
larger question of what distinguishes science from non-science. The
fundamental distinction between science and non-science is the
criterion of falsifiability. In other words, all hypotheses must be
testable. When clear-cut criteria are laid out in advance of data
collection and all information considered, then there is less room for
bias through the selective interpretation of the information (the
scientific method). For the Endangered Species Act (ESA), which relies
on scientific information, that means that data must be publicly
available, conclusions open to question, and all information
considered--including contrary information. If ESA decisions are not
made in such an open and transparent way, then the moral authority of
the ESA is compromised and valuable resources are diverted away from
conservation.
I write today because there does appear to be a ``Crisis in
Confidence'' with some of the ``science'' used in Endangered Species
Act decisions. This is an issue that crosses administrations and sides
of the aisle. The examples below show that there is a ``crisis''
occurring, for reasons other than what you may have been led to
believe. There can also be serious consequences for those who dare to
ask questions about information used in some ESA decisions.
Case 1: The Preble's Mouse Jumping Mouse
In the case of the Preble's mouse (listed as an endangered
subspecies), the record will ultimately show that special interest
groups, individuals, and academics with vested financial interests, and
some U.S. Fish and Wildlife Service (USFWS) staff, have managed to
maintain an invalid subspecies as an ESA-listing by obfuscation,
intimidation, and ignoring contrary evidence. I have five years of
experience on this issue because I was the scientist who led the work
that questioned the validity of the Preble's mouse subspecies and its
presumed rarity, and concluded that it was not a valid subspecies.
Obfuscation
The USFWS erroneously reported twice in the Federal Register that
the Preble's delisting petitions relied primarily on the results of our
study. That is contrary to the fact that our research was only
mentioned on half a page of the 106-page delisting petitions. The
delisting petitions provided abundant information that these mice are
more common and widespread than previously thought. Yet the USFWS has
still failed to address these data over three years later.
The USFWS Denver office organized two sets of peer reviews of our
research prior to publication. However, they had failed to rigorously
review the weak evidence that was used previously in support of the
listing.
After our original research refuting the validity of the Preble's
mouse as a subspecies was published in 2005, the FWS at Region 6 went
looking for another study that would support the listing. Shortly
thereafter, a report came out by a USGS biologist that concluded that
Preble's was a valid subspecies and made a wholesale portrayal of our
work as inaccurate. This USGS report was leaked to the press by a pro-
listing environmental group amidst much media fanfare. Most of the
press did not bother to read any of the original papers, or our
responses. The key difference between these studies was how the problem
was approached. We set criteria in advance of data collection and
measured to those thresholds, whereas the USGS study relied on post-hoc
interpretations and used a level of divergence so low that almost any
population could be listed as endangered under the ESA, effectively
removing such decisions from the realm of science.
In March of 2006, the staff at Region 6 sought to rush through
approval of a peer review panel composed largely of agency biologists
and scheduled for a time when I could not attend. After their efforts
failed, another peer review panel was organized. The lead author of the
USGS study, as well as environmental groups, influenced the structure
and composition of the panel. A double standard was applied to
evaluating panelist's conflicts of interest and to evaluating the
evidence itself. Instead of reviewing all of the available science, the
panel arbitrarily created its own burden of proof, which it then
unilaterally applied only to our study. Rather than focus on the real
issue of appropriate thresholds that can be used to define subspecies,
they diverted attention by focusing criticism on results from a handful
of specimens in our study. The panel failed to acknowledge that
reanalysis of our data without these specimens, did not alter the
overall results or conclusions of our study. Ultimately, if this
panel's recommendations are followed and applied to other cases, it
would mean that many inadequately defined subspecies would not be
potentially falsifiable (i.e. could never be questioned). This
effectively puts ESA listed subspecies evaluations outside the realm of
scientific investigation.
We respectfully disagreed with the conclusions of the USGS study
and prepared a response paper. That paper was accepted for publication
in February 2007, however, the lead author of the USGS study managed to
delay publication of our paper for months.
Intimidation
Over the course of two years I was harassed and intimidated by
USFWS Denver staff, most notably, the leader of the Preble's Recovery
Team who cursed me in harassing telephone messages, wrote fallacious
slander about me to my supervisors, and threatened to withhold research
funding for the project. A Preble's mouse consultant, representing a
coalition of environmental groups, USFWS staff, and academics, all of
who have financial stake in the Preble's listing or others like it, put
pressure on my employer.
Ignoring contrary evidence
Most contrary information to the Preble's listing is absent from
the USFWS Preble's Meadow Jumping Mouse Home Page. The USFWS gives
dismissive treatment to contrary information in Federal Register
notices, or does not provide it to peer reviewers. This speaks volumes
about the selective use of information by this agency. For example:
The USFWS has not acknowledged that this supposed
subspecies was originally based on measurements of only three
specimens, nor have they acknowledged that the original scientist who
described this subspecies in 1953 went on record in 2004 rejecting the
validity of the subspecies.
The USFWS has not acknowledged that an earlier (1997)
genetics study that was used in support of the listing was never
published and the data were never made publicly available, despite
repeated requests. In short, that study was never subjected to a
rigorous review.
The USFWS has not acknowledged that the 1995 distribution
study that was used in support of the listing was based on minimal
effort and never published.
The USFWS kept over a decade of Preble's trapping data in
their files but never analyzed them. Independent analysis of those data
showed that the supposedly rare Preble's mouse subspecies was far more
common and widespread than previously thought.
Contrary information missing from the USFWS website
includes:
1) A 1981 dissertation that examined 9,000 specimens of
jumping mice and concluded that there were no subspecies of
meadow jumping mice.
2) A series of five papers in the journal Animal Conservation
that followed our original study, including a 2006 response
paper by my coauthors and myself. The only paper from this
series that appeared on the website was the paper which
supports the continued ESA listing.
3) A 1986 experimental study that showed that another species
of rodent, the meadow vole, out-competes the meadow jumping
mouse. In other words, when meadow vole numbers are high,
meadow jumping mouse numbers are low and they are hard to
catch.
4) An independent quantitative analysis of both the raw
genetic data from our 2005 paper and the data from the USGS
study. That quantitative analysis used thresholds from the
literature and found no support for Prebles as a subspecies,
let alone as an Evolutionary Significant Unit (ESU) or Distinct
Vertebrate Population Segment (DPS).
5) Our August 2006 response to the Preble's review panel
report that we provided to the USFWS.
6) Our response paper to the USGS study that we provided to
the USFWS.
7) A 2003 study published in Conservation Biology that
revealed that the Preble's subspecies ESA listing actually
encouraged landowners to take steps that were counterproductive
to conservation.
Case Two: The Coastal California Gnatcatcher
Two peer reviews of the coastal California gnatcatcher taxonomy
were conducted by the USFWS (listed as an endangered subspecies). One
internal peer review by federal agency biologists omitted substantial
contrary information that was in the public record. The omitted
contrary information included six technical reports reanalyzing the
original data used to describe the subspecies, one peer-reviewed paper
on gnatcatcher taxonomy, and a deposition by the scientist who
described it as a new subspecies. In that deposition, the scientist
recanted the reliability of key measurements, admitted to substituting
estimates for missing data, and told of destroying original copies of
his data before he finished his dissertation and published the results.
Despite these revelations, the scientists who conducted the internal
agency peer review then made a Powerpoint presentation to senior
decision makers at the Department of Interior in Washington, D.C. That
presentation made no mention of the omitted contrary information and
thus the subspecies listing of the coastal California gnatcatcher was
maintained.
Case Three: Critical Habitat of Desert Bighorn Sheep in the Peninsular
Ranges of California
The recovery plan for desert bighorn sheep in the Peninsular Ranges
of southern California (listed as an endangered DPS) specifically
called for a quantitative habitat analysis. Consequently, an extensive
database of 21,055 bighorn sheep observations was compiled. However,
Critical Habitat was subjectively defined by the USFWS and based upon
the opinions of Recovery Team members rather than on a quantitative
analysis of the observation data.
Several colleagues and I published a scientific paper on the
determination of Critical Habitat for this population. We had to obtain
the bighorn observation data under a Freedom of Information Act request
because the local USFWS office would not release the data when
requested. When we obtained the data, we found that it had been
stripped of many attributes. When I asked for these additional data, I
was told by the USFWS to go to the individual researchers. When I went
to the individual researchers I was told: ``The USFWS data was
deliberately provided in a format that would not facilitate a detailed
analysis by those unfamiliar with the manner in which it was
collected.''
In our subsequent analyses, we found that over 60 percent of
designated Critical Habitat in the northern Santa Rosa Mountains had a
near zero probability of bighorn sheep use. Critical Habitat for this
DPS has been vacated in part and remanded for new rulemaking by the
Court. In this case, both our analysis and the Court did not agree with
the USFWS staff's so-called ``science''.
Conclusion
Congress and the Department of Interior could ask: ``Why don't we
ask the right questions in the first place before questionable
subspecies and populations are added to the Endangered Species list?''
Obfuscation, intimidation, and ignoring of contrary evidence have
contributed to the continued ESA-listing of the Preble's mouse
subspecies. As shown with the second and third examples, the Preble's
case is not an isolated incident; it is symptomatic of deeper problems
within agencies charged with administration of the ESA. While there are
many competent and dedicated staff within these agencies, there are
neither adequate safeguards nor oversight to prevent other staff from
cherry-picking, engaging in subjective interpretations, or completely
ignoring contrary information altogether. There are scant few with the
expertise or the time needed to detect such occurrences.
There are productive steps that could be taken to ensure that ESA
decisions are based upon science rather than opinion and politics,
while ensuring that priority for conservation effort goes to truly
endangered species. I have suggested a number of these in previous
Congressional testimony and publications.
Briefly, these include:
1) Take steps to ensure that all information, including contrary
information, is considered in peer reviews, listing/delisting decisions
and biological opinions. Consistent questions and standards in these
peer reviews would serve conservation. Rather than internal agency peer
reviews, require external/independent reviewers.
2) Require that data used in peer reviews, listing/delisting
decisions, and biological opinions be publicly available.
3) Establish legally-definable minimum thresholds for the
uniqueness of taxa that can be listed. Set the bar at a quantifiable
and biologically meaningful level of distinctiveness.
4) Establish quantitative thresholds for ``significance'' used in
DPS listings. This could be quantified in terms of percent range and/or
census numbers.
5) Establish a quantitative approach for designating Critical
Habitat.
6) Require compliance with priority rankings in order to allocate
listing and recovery effort.
7) Take steps to eliminate financial and other conflicts of
interest in Recovery Teams and peer reviews.
8) Evaluate hypothetical threats using a well-defined problem
analysis approach.
In conclusion, I urge this Committee to pursue this reasonable and
science-based path to protecting endangered species.
Thank you for the opportunity to write to you about these issues.
______
Mr. Lamborn. Thank you, Mr. Chairman. And I would also ask
unanimous consent to submit a letter sent to Secretary
Kempthorne yesterday by my esteemed Colorado colleague, Senator
Wayne Allard, detailing troubling efforts by certain Fish and
Wildlife staff to discredit Dr. Ramey's testimony.
The Chairman. Without objection, at the proper place in the
record, it will be made part of the record.
Mr. Lamborn. Thank you, Mr. Chairman.
In Dr. Ramey's testimony, he articulates a pattern of
intimidating involving the decision-making process, as noted by
the following excerpt, and I will just read two sentences out
of his testimony: ``Over the course of two years, I was
harassed and intimidated by U.S. Fish and Wildlife Service
Denver staff, most notably, the leader of the Preble's recovery
team, who cursed me in harassing telephone messages, wrote
fallacious slander about me to my supervisors, and threatened
to withhold research funding for the project. A Preble's mouse
consultant, representing a coalition of environmental groups,
USFWS staff, and academic, all of whom have financial stake in
the Preble's listing or others like it, put pressure on my
employer.''
Frankly, what we are talking about today involves
transparency. My colleagues on the other side of the aisle are
questioning decisions that were made, and that is fine, but if
they are serious about transparency and not just using this
hearing as an opportunity to score political points, then they
will join me in calling for all information regarding this
process to see the light of day.
I hope you will agree that allowing written testimony from
a U.S. senator and someone intimately involved in the Preble
decision-making process helps accomplish this. Thank you, Mr.
Chairman.
[The letter from Senator Allard to Secretary Kempthorne
submitted for the record follows:]
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The Chairman. The gentlelady from the Virgin Islands,
Mrs. Christensen, is recognized.
STATEMENT OF HON. DONNA M. CHRISTENSEN, A U.S. DELEGATE FROM
THE TERRITORY OF THE VIRGIN ISLANDS
Mrs. Christensen. Thank you, Mr. Chairman. Thank you for
the opportunity to make a brief opening statement. Mine is
going to be a bit more general because, in retrospect, I
remember coming from a territory, having conversations with the
transition team for the Bush-Cheney administration in 2001, and
it became clear to me then, in talking with them, that the
Interior team would be proteges of the Vice President. Then,
the way my schedule and my travel work, going to the Virgin
Islands, I would often be flying home on Fridays, and that
became a day that I could really go through the paper from end
to end.
A pattern clearly began to develop of news that the
administration wanted to pass below the radar screen being
published on Fridays, and much of that news happened to be
about changes made to eight oversight agencies, the scientific
panels, or other commissions where individuals with glaring
conflicts of interest replaced respected, scientific leaders or
experts on the issues of the group or the agency's
jurisdiction.
I complained about it several times and wrote letters to
the editor, which were never printed. So I am glad, Mr.
Chairman, that we are having this hearing today, which I feel
we must have if we are to fulfill our oversight responsibility
for the natural resources of our nation.
I will submit the rest of my written statement for the
record, but I mentioned before that, in 2004, in a health
report, the entire report on health disparities was changed
from what the scientists within the Department of Health and
Human Services had written, to indicate that there were no
health disparities for people of color in this country. It was
fortunate that some Members of the Government Reform Committee
had gotten wind of the original report, and we were able to
have the original report sent out and the other one rescinded,
but the entire report was changed.
So I think this is an important hearing. It is focused on
natural resources and the Endangered Species Act, and issues
under our jurisdiction, but it speaks to a larger problem
within the administration.
[The prepared statement of Mrs. Christensen follows:]
Statement of The Honorable Donna M. Christensen, a Delegate in Congress
from the Virgin Islands
The inquiry of this hearing is very much in order since in my
speaking with the Bush transition team in 2001, it became clear that
the Department of the Interior team was likely to be ``protege's of''
Vice President Dick Cheney. But the issue of interference in to
decision making based on sound science goes far beyond the Department
of the Interior.
Our schedule and travel to the Virgin Islands being what it is, I
would often be flying home on Fridays so that became a day I could read
the paper cover to cover. A pattern clearly developed of news that the
administration wanted to pass below the radar screen being published on
Friday. Much of that news happened to be about changes made to
scientific panels or other commissions where individuals with glaring
conflicts of interest replaced respected scientific leaders or experts
on the issues of the group's jurisdiction.
I complained about it several times in letters to the editor. They
were not printed. And so I am very glad Mr. Chair and Ranking member
that we are having this hearing, which we must have if we are to
fulfill our responsibility, today.
As a matter of fact, I have gotten to the point where I do not feel
secure relying on any scientific reports coming from this
administration since the 2004 Health Disparity Report in which they
completely changed the report to say that there were none--any thinking
person would know that this could never be true.
We were able to have the original and genuine report released, and
today we are taking another step to correct any harm the altering of
scientific reports may have had on our environment or our people and
prevent this from happening going forward.
______
The Chairman. The gentlelady from California, Mrs.
Napolitano.
STATEMENT OF HON. GRACE F. NAPOLITANO, A U.S. REPRESENTATIVE
FROM THE STATE OF CALIFORNIA
Mrs. Napolitano. Thank you, Mr. Chairman. I join my
colleagues, and I echo their sentiments in regard to the
behavior of the Department of the Interior, which is allowing
politics to trump science without regard to the consequences.
The American public expects the agencies, expects us, to be of
reproach in our actions to represent them.
Today, I am going to focus on an example of my own
experience. About three weeks ago, the Water and Power
Subcommittee, which I chair, conducted an oversight hearing
into the delta smelt crisis in California's Bay Delta, the
largest estuary on the West Coast and water supply for over 25
million people.
The delta smelt, once the most abundant fish species in the
delta, has reached such critically low levels that they are at
risk of extinction. It is on the C list, and it, along with
other fish species, have crashed over the last five years.
While we acknowledge that there are many interacting
factors that probably have contributed to the decline, our
Subcommittee received extensive sworn testimony that the
decline of the fish populations in the delta were likely
directly related to the operation of the large Federal and
state water projects in the delta. Agency employees who manage
our fisheries, public lands, minerals, and other natural
resources must be absolutely free to make decisions based on
the best available information.
This apparently did not happen in the case of the smelt. In
fact, a Federal judge was asked to intervene and found that the
biological opinion produced by the Fish and Wildlife Service,
with regard to the smelt, was fundamentally flawed and illegal.
As of now, the delta smelt and water projects are all in
limbo because the agencies could not take corrective action
when it was needed, and a new biological opinion must be
written, which will take more than a year. In the meantime, the
Bureau of Reclamation continues to pump water out of the delta
under the rules of an outdated and illegal biological opinion.
There is no way that we can have this continue, and there
is no way for the Federal agency to manage our country's
natural resources. In California, where we are so dependent on
the delta, a large portion of our economy is at risk if the
water exports are completely stopped to protect the endangered
fish.
The Bureau of Reclamation, of course, is reluctant to stop
the pumping, and why? Because we have no backup. Why have not
we developed more alternative supplies through water recycling
and conservation? Why have not we looked for more groundwater
storage and banking? Perhaps the most important question, Mr.
Chair: Should we trust the Federal agencies to make good
decisions in the future? How do we know that current political
leadership in the agencies is not cooking the books to match
their own agenda?
I asked these questions at our recent hearing on the delta
smelt, and I still have no answers. Now, I come to this hearing
and find that I am not the only one struggling with this. Mr.
Chairman, I hope we get some real answers today. We must act
now to assure our constituents that the precious natural
resources will be there for them, for our children, and our
great-grandchildren. I thank you, Mr. Chairman, and look
forward to the testimony.
[The prepared statement of Mrs. Napolitano follows:]
Statement of The Honorable Grace F. Napolitano, a Representative in
Congress from the State of California
I would like to begin by thanking Chairman Rahall for holding this
critical hearing on a disturbing pattern of behavior in the Department
of the Interior that allows politics to trump science without regard to
consequences. The agencies must be above reproach in their action to
represent their respective charge.
Today, I am going to focus on an example from my own experience.
Three weeks ago, the Water and Power Subcommittee, which I chair,
conducted an oversight hearing into the delta smelt crisis in
California's Bay-Delta, the largest estuary on the west coast and the
water supply for 25 million people. There, delta smelt, once the most
abundant fish species in the delta, has reached such critically low
levels that they are at risk of extinction in the near future. The
smelt is listed as a threatened species under the Endangered Species
Act.
The smelt, along with several other fish species, has literally
crashed over the last 5 years. While we acknowledge there are many
interacting factors that probably have contributed to the fisheries
decline, our subcommittee received extensive sworn testimony that the
decline of fish populations in the delta is likely directly related to
the operation of the large Federal and state water projects in the
Delta.
Agency employees who manage our fisheries, public lands, minerals,
and other natural resources must be absolutely free to make decisions
based on the best available information. This apparently did not happen
in the case of the smelt. In fact, when a federal judge was asked to
intervene, he found that the Biological Opinion produced by the Fish
and Wildlife Service with regards to the smelt was fundamentally flawed
and illegal.
As of now, the delta smelt and the water projects are all in limbo.
Because the agencies could not take corrective action when it needed to
be taken, a new Biological Opinion must be written, which will take
more than a year. In the meantime, the Bureau of Reclamation continues
to pump water out of the delta, under the rules of an outdated and
illegal Biological Opinion.
This is no way for a federal agency to manage our country's natural
resources. In California, we are so dependent on the Delta, that a
large portion of our economy is at risk if water exports are completely
stopped to protect endangered fish. The Bureau of Reclamation, of
course, is reluctant to stop pumping. Why? Because we have no backup.
Why haven't we developed more alternative water supplies through water
recycling and conservation? Why haven't we looked to more to
groundwater storage and banking? And perhaps the most important
question: should we trust the federal agencies to make good decisions
in the future? How do we know the current political leadership in the
agencies isn't ``cooking the books'' to match their own agenda?
I asked these questions at our recent hearing on the delta smelt,
and I still have no answer. Now I come to this hearing, and find that I
am not the only one struggling with this. Mr. Chairman, I hope we get
some real answers today. We must act now to assure our constituents
that their precious natural resources will be there for them, and their
children.
Thank you, Mr. Chairman. I look forward to the testimony.
______
The Chairman. The gentleman from Arizona, Mr. Grijalva.
STATEMENT OF HON. RAUL M. GRIJALVA, A U.S. REPRESENTATIVE FROM
THE STATE OF ARIZONA
Mr. Grijalva. Let me join with my colleagues, Mr. Chairman,
in thanking you for holding the hearing. I think there is a
great need for Congress to investigate what has been going on
at the highest levels of the Bush administration, in this
instance, with regard to decisions affecting endangered
species, but, as my colleague, Mr. Miller, pointed out, this is
one area of many areas, and there seems to be a pathological
pattern to warp science, warp fact, and create decisions that
fit a political agenda.
What came out in the revelations regarding the role of Mr.
Roe and Mr. Cheney in the Klamath decision and the devastating
loss of fisheries; Julie MacDonald and changing biological
opinion on behalf of herself and the industry; this is probably
the tip of the iceberg.
So this hearing is important. I applaud you for holding it,
and I look forward to the testimony.
The Chairman. I understand that the gentleman from Texas
does not wish to make an opening statement.
The gentleman from New Jersey, Mr. Holt.
STATEMENT OF HON. RUSH D. HOLT, A U.S. REPRESENTATIVE FROM THE
STATE OF NEW JERSEY
Mr. Holt. Thank you, Mr. Chairman. It should be repeated
again and again that Congress has a role in addition to
legislation, which is oversight. It looks as if we are going to
be busy for a long time with oversight, considering the number
of questions we have in front of us here, and I thank the
Chairman very much for setting up these hearings so that we can
set things right and get the ship back on course.
The Chairman. Thank you. We are now ready to proceed to our
first panel, and the Chair wishes to express its appreciation
to our colleagues and friends that have patiently waited for
their testimony, and if it is the panel's desire, the Chair
will recognize those Members in the order in which, I
understand, they came in, and that would be The Honorable Greg
Walden, a former Member of this Committee, from Oregon,
followed by The Honorable John Doolittle from California, to be
followed by our colleague, Wally Herger, also from California,
and then to clean up, Mr. Mike Thompson.
If that is OK with you, gentlemen, you may proceed, Greg.
STATEMENT OF HON. GREG WALDEN, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. Walden. Mr. Chairman, you are the Chairman. We are
happy to follow your lead on this.
Mr. Chairman and Members of the Committee, for the record,
I am Greg Walden, and I represent the people of Oregon's Second
District, including those in the Klamath Basin. I want to thank
you for letting me testify today and for letting me join you on
the dais afterwards.
During my eight and a half years in the Congress, no set of
issues has consumed my time and energy more than those
involving the very complex situation at Klamath Basin.
I want to make three key points this morning. First, the
decisions made affecting the fish farmers and tribes in the
basin have been thoroughly and independently evaluated by the
Inspector General of the Department of the Interior. The
Inspector General's findings, more than three years ago,
completely dismissed the allegation of undue political
influence.
You each should have a copy of that response, and I would
ask unanimous consent that Mr. Devaney's March 1, 2004,
response to Senator John Kerry be made part of the official
record.
The Chairman. Without objection, so ordered.
[The Devaney letter submitted for the record follows:]
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Mr. Walden. Second, the National Academy of Sciences
report, four years ago, rejected the allegation that the
Klamath project was to blame for the fish kill in 2002, just as
it concluded that the agencies did not use junk science but did
accept, as they wrote, ``a high risk of error in proposing
actions that the available evidence indicated to be of doubtful
utility.''
I would also ask unanimous consent that the National
Academy of Sciences, National Research Council, Committee on
Endangered and Threatened Fishes in the Klamath Basin, Final
Report be made part of the official record.
[NOTE: The Final Report has been retained in the
Committee's official files.]
Third, the Committee's hearing today, to the extent it
opens old wounds and reignites past conflicts, runs the risk of
aborting a mediated settlement process that includes 26 parties
in the basin, who, in the past, would have been at each other's
throats, but, on the contrary, for the last many months, have
been at each other's tables trying to find a basin-wide
solution.
As Craig Tucker and Leif Hillman from the Karuk Tribe told
the Oregonian newspaper on July 16, 2007, and I quote: ``The
real story on the Klamath is not what politicians did four
years ago but what Klamath Basin residents and coastal
fishermen are doing today to solve the Klamath crisis.''
Mr. Chairman, just as you called on the Department of
Agriculture one month ago to do everything possible to assist
the farmers of 46 counties in West Virginia who are suffering
from a lack of water because of a drought, so, too, did I and
my colleagues in the basin ask everyone, from the President on
down, to do whatever was within the scope of the law to help
the farmers in the Klamath Basin when the conditions in 2001,
because of a drought, resulted in loss of water to the project
for the first time in nearly 100 years.
The picture you see on the screen here demonstrates what
happens when the water to the farmers is turned off because
downstream from the Klamath project is the Klamath Wildlife
Refuge. The water flows through the project to the refuge, and
you can see the devastation done that year to waterfowl
habitat.
I also worked closely with your two predecessors to hold
oversight hearings on the problems to help identify what went
wrong and how we could fix it. We called on the Department of
the Interior to seek a review by the National Academy of
Sciences during a field hearing at the fairgrounds in Klamath
Falls. We looked at the problems, including a lack of screens
on the A canal and fish passage in Chiloquin Dam, as you can
see here. This administration responded aggressively by pushing
the agencies to get results on both.
Today, a multimillion-dollar complex fish screen prevents
sucker larvae from ending up in the irrigation system rather
than staying in their natural habitat, and, within a year or
two, Chiloquin Dam, which was the main cause of the original
listing of the sucker, will be gone, reopening 95 percent of
the habitat up the Sprague River.
In addition, the basin has seen 370 partnership ecosystem
restoration projects, a 100,000-acre water bank, water taken
out of productive use and used for fisheries, and more than
$500 million in Klamath watershed habitat restoration, water
quality improvement, and water conservation efforts since 2002.
Good things are happening in the basin like never before.
It is unfortunate that the Committee's valued time is not spent
encouraging more forward progress in the basin, but I hold out
hope that it will.
As for the fish kill, I implore you to listen to the words
of Professor William Lewis, who will testify later today and
who chaired the Committee on Endangered and Threatened Fishes
in the Klamath River Basin, a committee of the National
Research Council, the world's premier, independent, scientific
body.
He says, and I quote: ``The Klamath project is located over
150 miles upstream from the mouth, and water flowing through
the Klamath project accounts for only 10 percent of the total
flow at the mouth. Large tributaries entering the river below
the Klamath project contribute most of the flow at the mouth.
Furthermore, the Klamath project releases water that is warm
because it comes from storage lakes rather than reaching the
stream through groundwater or surface runoff.
``The committee concluded that a relatively small amount of
warm water propagated over a distance of 150 miles would not
have made a critical difference to the salmon that were staging
for migration at the mouth of the river.
``The committee also examined previous conditions and found
that low flows, similar to those in 2002, had occurred in
several years within the period of record without any
accompanying salmon mortality.
``The committee, therefore, concluded that mortality was
the result of an unusual combination of conditions, probably
including unusually low flow plus the absence of a cool pulsive
flow that even a brief precipitation event might have
provided.''
Now, to my third, and final, point, Mr. Chairman. The
Klamath Basin Settlement Group has worked in private for the
last several years to reach common ground on complex issues.
Their goal is to recommend to Congress a comprehensive
settlement plan that will work for the fish and the fishermen,
for the tribes and for the farmers, and hope to have that ready
to go by November of this year.
While the talks remain confidential, I know they are
complex, just as the problems are complicated. I wish them well
in their work and would encourage them to ignore the political
noise in Washington and stay focused on the long-term solutions
they seek, and I implore this Committee and its staff to do the
same.
Prior sessions of Congress have helped those in need--
farmers and fishermen--when they have suffered losses, and
prior sessions of Congress have investigated what went wrong
and why. I implore this Committee to not go down the partisan
path of political provocation but, instead, to rise above it
and provide support to those good citizens who are laboring to
find common ground in a basin-wide settlement.
Let us do what is best for the fish, the farmers, the
tribes, and the fishermen. Let us encourage them to find common
ground, not rub salt in old wounds, when they are so close to
an historic agreement of enormous significance.
Thank you, Mr. Chairman. I ask that my full statement be
made a part of the record.
[The prepared statement of Mr. Walden follows:]
Statement of The Honorable Greg Walden, a Representative in Congress
from the State of Oregon
Mr. Chairman, members of the Committee. For the record, I am Greg
Walden and I represent the people of Oregon's Second District,
including those in the Klamath Basin. Thank you for letting me testify
today and for letting me join you on the dais afterward. During my
eight-and-a-half years in Congress, no set of issues has consumed my
time and energy more than those involving the complexities of the
Klamath Basin.
I want to make three key points this morning:
First, the decisions made affecting the fish, farmers and Tribes in
the Basin have been thoroughly and independently evaluated by the
Inspector General for the Department of the Interior. The Inspector
General's findings more than three years ago completely dismissed the
allegation of undue political influence. You each have a copy of that
response and I would unanimous consent that Mr. Devaney's March 1, 2004
response to Sen. John Kerry be made part of the official record.
Second, the National Academy of Sciences report four years ago
rejected the allegation that the Klamath Project was to blame for the
fish kill in 2002, just as it concluded that the agencies did NOT use
``junk science,'' but did, accept, as they wrote, ``...a high risk of
error in proposing actions that the available evidence indicated to be
of doubtful utility.'' I would unanimous consent that the Nation
Academy of Science, National Research Council Committee on Endangered
and Threatened Fishes in the Klamath Basin final report be made a part
of the official record.
Third, the Committee's hearing today, to the extent it opens old
wounds and reignites past conflicts, runs the risk of aborting a
mediated settlement process that includes 26 parties in the Basin who
in the past would have been at each others throats and for the last
many months have been at each other's tables trying to find a Basin-
wide solution.
As Craig Tucker and Leaf Hillman from the Karuk Tribe told the
Oregonian newspaper on July 16, 2007, and I quote: ``The real story on
the Klamath is not what politicians did four years ago, but what
Klamath basin residents and coastal fishermen are doing today to solve
the Klamath crisis.''
Mr. Chairman, just as you called on the Department of Agriculture
one month ago to do everything possible to assist the farmers of 46
counties in West Virginia who are suffering from a lack of water
because of a drought, so too did I and my colleagues in the Basin ask
everyone from the President on down to do whatever was within the scope
of the law to help the farmers in the Klamath Basin when the conditions
in 2001 resulted in a loss of water to the Project for the first time
in nearly 100 years.
I also worked closely with your two predecessors to hold oversight
hearings on the problems to help identify what went wrong and how we
could fix it. We called on the Department of Interior to seek a review
by the National Academy of Sciences during a field hearing at the
fairgrounds in Klamath Falls.
We looked at the problems, including a lack of fish screens on the
A Canal and fish passage at Chiloquin Dam. And this Administration
responded aggressively by pushing the agencies to get results on both.
Today, a multi-million dollar, complex fish screen prevents sucker
larva from ending up in the irrigation system rather than staying in
their natural habitat. And within a year or two, Chiloquin Dam, which
was the main cause of the original listing will be gone, reopening 95%
of the habitat up the Sprague River.
In addition, the Basin has seen 370 partnership ecosystem
restoration projects, a 100-thousand acre water bank, and more than
$500 million dollars in Klamath Watershed habitat restoration, water
quality improvement and water conservation efforts since 2002. Good
things are happening in the Basin like never before. It's unfortunate
that the Committee's value time is not spent encouraging more forward
progress in the Basin.
As for the fish kill: I implore you to listen to the words of
Professor William Lewis who will testify later today, and who chaired
the Committee on Endangered and Threatened Fishes in the Klamath River
Basin, a committee of the National Research Council, the premier,
independent, scientific body in the world:
``The Klamath Project is located over 150 miles upstream from the
mouth, and water flowing through the Klamath Project accounts for only
10% of the total flow at the mouth; large tributaries entering the
river below the Klamath Project contribute most of the flow at the
mouth. Furthermore, the Klamath Project releases water that is warm
because it comes from storage lakes rather than reaching the stream
through groundwater or surface runoff. The committee concluded that a
relatively small amount of warm water propagated over a distance of 150
miles would not have made a critical difference to the salmon that were
staging for migration at the mouth of the river.''
``The committee also examined previous conditions and found that
low flows similar to those of 2002 had occurred in several years within
the period of record without any accompanying salmon mortality. The
committee therefore concluded that mortality was the result of an
unusual combination of conditions, probably including unusually low
flow plus the absence of a cool pulse of flow that even a brief
precipitation event might have provided.''
Now, to my third and final point, the Klamath Basin Settlement
Group has worked in private for over the last several years to reach
common ground on complex issues. Their goal is to recommend to Congress
a comprehensive settlement plan that will work for the fish and
fishermen, for the Tribes and for the farmers by the end of November of
this year.
While the talks are confidential, I know they are complex, just as
the problems are complicated. I wish them well in their work and would
encourage them to ignore the political noise in Washington and stay
focused on the long-term solutions they seek. And I implore this
Committee and its staff to do the same.
Prior sessions of Congress have helped those in need, farmers and
fishermen, when they've suffered losses. And prior sessions of Congress
have investigated what went wrong and why. I implore this Committee to
not go down the partisan path of political provocation, but instead to
rise above it and provide support to those good citizens who are
laboring to find common ground in a Basin-wide settlement.
Let's do what's best of the fish, the farmers, the Tribes and the
fishermen. Let's encourage them to find common ground, not rub salt in
old wounds when they are so close to an historic agreement of enormous
significance.
______
The Chairman. Without objection. All statements will be
made part of the record. John?
STATEMENT OF HON. JOHN T. DOOLITTLE, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Doolittle. Thank you, Mr. Chairman and Mrs. McMorris
Rodgers and distinguished Members. It was my privilege to serve
as a Member of this Committee for 10 years, and I always feel
like I am coming home when I appear before it. I will also note
that the same dynamic clash of ideas, philosophies, and world
views is still strongly present in the Committee.
I wish to offer testimony today on behalf of my
constituents in the Klamath River Basin. My greatest concern,
as I sit here today, is that anything said here should
interfere with the discussions by the 26 parties in the Klamath
Basin settlement group, who are a mere months away from an
historic agreement. As Mr. Walden indicated, these people were
at each other's throats for years, and they have finally come
together in a remarkable cooperative structure, and we think
that will produce final results shortly.
Therefore, I would like to use this opportunity to
highlight some of the progress that has been made since the
water was shut off in April 2000 so that we may provide not
concern but, indeed, encouragement to those settlement parties
as they approach the finish line.
Since 2002, as has been mentioned, the Federal government
has spent well over $500 million in the Klamath watershed for
habitat restoration, water quality improvement, and water
conservation.
Furthermore, as a result of the National Academy of
Sciences's independently peer-reviewed report, which told us
that the operation of the Klamath project was not the cause of
the 2002 fish die-off, several initiatives are either underway
or completed, which, unlike shutting off the water, will
benefit the wildlife, wetlands, and fish passage along the
Klamath River.
Mr. Walden alluded to these, and I just want to mention
them again. These initiatives include the completion of a fish
screen, which is a major project at the main project diversion;
370 partnership ecosystem restoration projects; and the removal
of Chiloquin Dam to open up 95 percent of sucker fish habitat.
These conservation activities and the ongoing settlement
negotiations are where Congress should be directing its
resources. Instead, we are here today in Washington, as opposed
to the Klamath River Basin itself, scavenging for evidence of
wrongdoing regarding Klamath where none exists.
An examination into wrongdoing was already conducted. In
2003, Senator John Kerry requested that the Department of the
Interior's Inspector General investigate whether the White
House political staff sought to influence the management of the
water resources which led to the 2002 fish die-off.
In his response, Inspector General Earl Devaney was
explicit in answering no. No White House political staff
intervened. I wonder, what about Mr. Devaney's findings that
this Committee believes is inadequate in order to bring us here
today to revisit that same question?
To be clear, we absolutely must ensure the science we based
our decisions upon is accurate and sound. This is why we have
Dr. Lewis's National Academy of Sciences report, which followed
the Fish and Wildlife Service's findings regarding the
endangered species in the Klamath River watershed, and if
Congress should deem it necessary to investigate the integrity
of those reviews on the basis of media reports, I could support
that as well.
But here we are, nearly four years after Senator Kerry
asked the same question we are asking today, and we will soon
be hearing the same answer Senator Kerry received, that there
was nothing improper behind the scientific findings at the
Departments of the Interior or Commerce.
So while I believe the issues facing the Klamath River
Basin deserve the attention of this Congress, and while I would
like to reiterate the requests of Congressman Walden,
Congressman Herger, and me in our June 29th letter inviting
this Committee to the basin, I would like to conclude my
testimony by simply asking that this Committee consider the
fragile alliance of groups working toward a solution, with an
agreement by all of the relevant stakeholders just a handful of
months away, and after all of the conservation efforts and the
hundreds of millions of dollars spent by the Federal government
to improve the habitat conditions for the species in the
watershed, I can only hope that this hearing may be conducted
in that same constructive spirit, working toward achieving a
permanent solution to the panoply of issues confronting
stakeholders in the region. Thank you.
[The prepared statement of Mr. Doolittle follows:]
Statement of The Honorable John T. Doolittle, a Representative in
Congress from the State of California
Mr. Chairman, Mrs. McMorris-Rogers, thank you for the opportunity
to present the committee with testimony on behalf of my constituents in
the Klamath River Basin.
My greatest concern as I sit here today is that anything should
interfere with the discussions by the 26 parties in the Klamath Basin
Settlement Group who are mere months away from an historic agreement.
Therefore, I would like to use this opportunity to highlight some of
the progress that has been made since the water was shut off in April
2000, so that we may provide not concern, but, indeed, encouragement to
those settlement parties as they approach the finish line.
Since 2002, the federal government has spent well over $500 million
dollars in the Klamath Watershed for habitat restoration, water quality
improvement, and water conservation. Furthermore, as a result of the
National Academy of Science's independently peer-reviewed report which
told us that the operation of the Klamath Project was not the cause of
the 2002 fish die-off, several initiatives are either underway or
completed which, unlike shutting off the water, will benefit the
wildlife, wetlands, and fish passage along the Klamath River. The
initiatives include the completion of a fish screen at the main Project
diversion, 370 partnership ecosystem restoration projects, and the
removal of Chiloquin Dam to open up 95 percent of sucker fish habitat.
These conservation activities and the ongoing settlement
negotiations are where Congress should be directing its resources.
Instead, we are here today--in Washington as opposed to the Klamath
River Basin itself--scavenging for evidence of wrongdoings regarding
Klamath where none exists. An examination into wrongdoing was already
conducted. In 2003, Senator John Kerry requested that the Department of
Interior's Inspector General investigate whether White House political
staff sought to influence the management of the water resources which
led to the 2002 fish die-off. In his response, Inspector General Earl
Devaney was explicit in answering ``No. No White House political staff
intervened.'' I wonder what about Mr. Devaney's findings this committee
believes is inadequate in order to bring us here today to revisit that
same question.
To be clear, we absolutely must ensure the science we base our
decisions upon is accurate and sound; this is why we have Dr. Lewis'
NAS report which followed the Fish and Wildlife Service's findings
regarding the endangered species in the Klamath River Watershed. And if
Congress should deem it necessary to investigate the integrity of those
reviews on the basis of media reports, I could support that as well.
But here we are, nearly four years after Senator Kerry asked the same
question we are asking today, and we will soon be hearing the same
answer Senator Kerry received, to wit; there was nothing improper
behind the scientific findings at the Departments of Interior or
Commerce.
So while I believe the issues facing the Klamath River Basin
deserve the attention of this Congress, and while I would like to
reiterate the request of Congressman Walden, Congressman Herger, and me
in our June 29th letter inviting this committee to the basin, I would
like to conclude my testimony by simply asking that this committee
consider the fragile alliance of groups working toward a solution. With
an agreement by all the relevant stakeholders just a few months away,
and after all the conservation efforts and hundreds of millions of
dollars spent by the federal government to improve the habitat
conditions for the species in the watershed, I can only hope that this
hearing may be conducted in that same constructive spirit, working
toward achieving a permanent solution to the panoply of issues
confronting stakeholders in the region.
______
STATEMENT OF HON. WALLY HERGER, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Herger. Thank you, Mr. Chairman and Members. If there
is one unfortunate truth that the constituents I represent in
the northern California portion of the Klamath Basin have
learned, it is that Federal regulatory decisions that do not
rely on sound science can have devastating impacts on people in
their communities.
The decision to shut off water to agriculture in 2002 sent
shock waves throughout the upper basin community. Farms dried
up, and local businesses were severely impacted. Waterfowl in
the basin--namely, migrating ducks and geese that depend on
agriculture for an estimated 50 percent of their food--were
harmed as well. With an entire community on the brink of
disaster and feeling it had been wronged by questionable
science, we did not merely request clarification on the Federal
decision which perpetrated this crisis; we demanded answers.
The administration did the responsible thing, and they did
it openly and without a single word of protest from any
stakeholders. After all, who can possibly be against an
objective, independent review of Federal scientific decision-
making to ensure it was done properly.
The administration asked the National Academy of Sciences
to convene 12 of America's top scientists to independently
review the decision to shut off water to agriculture. Their
work was unanimously approved by every member of the research
team and was itself independently peer reviewed by additional
scientific experts from top universities.
The National Academy reported that the decision to withhold
lake water from the Klamath project and provide higher flows in
the Klamath River was not justified by science and potentially
harmful to the endangered fish the agencies were trying to
protect.
They also reviewed the fish die-off that occurred in 2002.
Their report, again, a unanimous report, independently peer
reviewed, declared that roughly 32,000 salmon died and that
there was no obvious linkage between Klamath farming and the
fish die-off. This makes common sense, as the Klamath project
farms are about 200 miles away from where the fish die-off
actually occurred. The claim that the Klamath farming project
was responsible for the fish die-off is not justified by
science and is, in my view, overly simplistic.
This region experienced very similar water conditions in
1988, and no fish die-off occurred. The claim that political
influence had a role in Klamath operations is equally absurd.
The Inspector General has reviewed such claims and reported
that ``none of the individuals interviewed, including the
whistleblower, was able to provide any competent evidence that
the Department utilized suspect scientific data or suppressed
information.''
But, Mr. Chairman, there is good news to share. Over $500
million has been invested in improving conditions in the
Klamath watershed since 2002. Only cooperation, not partisan
bickering, would fix the problems in the basin. Twenty-six
parties from above upper Klamath Lake all the way to the coast
have been working together to reach a compromise on the river.
These people desperately need a predictable and sustainable
outcome to this situation.
Mr. Chairman, we are elected to serve them and do what we
can to help. Dredging up untrue and unproven political
accusations does nothing to further their efforts and may even
discourage them. This is why I have requested a field hearing
in the mid-basin community of Yreka, California, so the
Committee can visit with those who wish to forego conflict in
favor of a cooperative local solution.
I would like to renew that request today, and I would also
like to invite you to my district to meet with the farmers I
represent. I think it would be incredibly valuable for you to
see firsthand the impressive work they are doing to conserve
fish and wildlife while continuing their rural way of life.
Again, I thank you very much.
[The prepared statement of Mr. Herger follows:]
Statement of The Honorable Wally Herger, a Representative in Congress
from the State of California
Mr. Chairman, if there is one unfortunate truth that the
constituents I represent in the Klamath Basin have learned, it is that
federal regulatory decisions that don't rely on sound science can have
devastating impacts on people and their communities.
The decision to shut off water to agriculture in 2001 sent
shockwaves throughout the Upper Basin community. Farms dried up and
local businesses were severely impacted. Waterfowl in the Basin, namely
migrating ducks and geese that depend on agriculture for an estimated
50 percent of their food, were harmed as well. With an entire community
is on the brink of disaster and feeling it had been wronged by
questionable science, my colleagues and I didn't merely ``request
clarification'' on the federal decision which perpetuated this crisis,
we demanded answers.
The current Administration did the responsible thing, and they did
it openly and without a single word of protest from any stakeholder.
After all, who can possibly be against an objective, independent review
of federal scientific decision-making to ensure it was done properly?
The Administration asked the National Academy of Sciences to
convene twelve of America's top scientists to independently review the
decision to shut off water to agriculture. Their work was unanimously
approved by every member of the research team and was itself
independently peer-reviewed by additional scientific experts from top
universities.
The National Academy reported that the decision to withhold lake
water and provide higher than normal flows in the Klamath River was not
justified by science, inconsistent with available data, and potentially
harmful to the fish the agencies were trying to protect.
They also reviewed the fish ``die off'' that occurred in 2002.
Their report--again, a unanimous report, independently peer-reviewed--
declared that roughly 32,000 salmon died and that there was no obvious
linkage between Klamath farming and the fish die off. This conclusion
makes common sense, as the Klamath Project farms are about 200 miles
away from the where the fish die off occurred.
The claim that the Klamath farming project was responsible for the
fish die-off is not justified by science, and in my view, overly
simplistic. This region experienced very similar water conditions in
1988 and no fish ``die-off'' occurred.
The claim the ``political influence'' had a role in Klamath
operations is equally absurd. The Inspector General has reviewed such
claims and reported that ``None of the individuals interviewed,
including the Whistleblower, was able to provide any competent evidence
that the Department utilized suspect scientific data or suppressed
information.''
But Mr. Chairman, there is good news to share. Over $500 million
has been invested in improving conditions in the Klamath watershed
since 2002.
Only cooperation--not partisan bickering--will fix problems in the
Basin. 26 parties from above Upper Klamath Lake to the coast have been
working together to reach a compromise on the river. These people
desperately need a predictable and sustainable outcome to this
situation. We are elected to serve them and do what we can to help.
Dredging up untrue and unproven political accusations does nothing to
further their efforts and may even discourage them.
This is why I've requested a field hearing in the mid-Basin
community of Yreka, California, so the committee can visit with those
who wish to forego conflict in favor of a cooperative local solution.
I'd like to renew that request today, and I'd also like to invite you
to my district to meet with the farmers I represent. I think it would
be incredibly valuable for you to see firsthand the impressive work
they are doing to conserve fish and wildlife while continuing their
rural way of life.
Thank you very much.
______
The Chairman. Mike, the bases are loaded, albeit with slow
runners, but it is your chance to hit it way out to give them a
chance to get home.
STATEMENT OF HON. MIKE THOMPSON, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Thompson. Thank you very much, Mr. Chairman and Members
of the Committee. I appreciate the fact that you are holding
this hearing, and I, too, believe that there should not be
partisan bickering, and it should not be a political or a
partisan issue.
I think that everyone here would agree, that is the issue.
That is why we are having a hearing. We need to make sure that
the work that is done is done with unadulterated science, and
the people that devote their life to working scientifically on
these issues are allowed to do their work and not to be
pressured or bullied by someone in the political arena.
We know for a fact that some of that has happened. We know
that the chief political operative did PowerPoint presentations
to career folks over in these agencies explaining the need to
address political issues rather than scientist issues. We have
heard from whistleblowers who have said that they have been
pressured and bullied, and I think it is very appropriate that
this Committee take the time to make sure that this is not
happening and does not happen in the future.
There are a few things that are just not disputable. One is
that this administration sidestepped a process that has been in
place and been adhered to for 30 years, and they violated the
law. They violated the Endangered Species Act. As Mr. Miller
said, if you do not like the law, change the law, but the fact
is, they violated the law, and three courts have stated that
that was the fact and that was done in a capricious and
arbitrary manner.
The other thing I want to mention is that there has been a
lot of talk, both from the dais and from the witness table,
about this unprecedented working group that has surfaced in the
Klamath Basin. I think that is true. The work that they are
doing is good. They have had more progress than ever.
It is not the first time there has been a working group in
that basin. As a matter of fact, there was an attempt, during
the fish-kill days, to take all of the funding away from the
folks who were doing cooperative work up in that basin. They
are making progress. They should be allowed to continue, but
they should be allowed to continue with the benefit of knowing
that they are going to have good science and good scientific
support.
They are not going to have the agencies bullied and their
arms twisted to get some outcome that is not in line with both
the science and the work that they are doing. Someone much
smarter than me once said that they would rather own the
referees than the best team.
Now, I think we have the best team up there working, but if
the referees, who are providing documentation and support, are
being bullied and forced to do something that is not in the
best interests of the area, it is going to be a mess for a long
time to come.
Some suggest that even the salmon may be at fault because
they came too early to the Klamath to go up to spawn. That just
pains me to hear that. It is like saying that the lady that was
killed when the guy ran the red light was at fault because she
decided to go to work early that day. The fish are not on some
schedule. They go up those rivers to spawn when it is time to
spawn.
In this particular case, because of bad water conditions
that I would argue that were at least contributed to by fudging
the science, nearly 80,000 salmon died of gill rot. It was a
disaster. It was a disaster to the entire State of California
and the State of Oregon.
Remember, there are three parts of that Klamath Basin.
There is the upper basin, which Mr. Walden represents; there is
the mid-basin that, I guess, John and Wally represent; and then
there is the lower basin, that area that comes out on the map--
it is not on the screen anymore, but empties out at the mouth
of the Klamath River, and everybody that had any business in
regard to commercial or sport salmon fisheries took a
significant hit because of this fish kill.
As Mr. Miller pointed out, that was a $60 million hit. Mr.
DeFazio mentioned it also, for both his State of Oregon and our
State of California, and it was not just the people that fish
for a living; it was everybody else how has anything at all to
do with the fishing industry. It was marinas and bait shops. It
was ice houses, it was lodging facilities and restaurants.
People lost their businesses. People lost their boats. People
lost their homes. People have been financing the maintenance of
their boat and their fishing equipment on credit cards so they
can hopefully come back and fish.
As everyone, I think, well knows, this was the biggest
commercial salmon-fishing disaster in history. The Department
of Commerce came in, declared it a disaster, and then we had to
work overtime to try to get the money for those folks to make
sure that they could have a host at coming back and going into
business.
Again, I want to applaud the work that is being done. I
think there is room to both fish and farm in the basin, but it
has got to be done in an honest, transparent basis so everyone
is working from the same science, and everyone's interests are
protected, not one interest over the others.
So I look forward to your work today, Mr. Chairman, and
thank you for allowing me to be present.
The Chairman. The Committee thanks each of you for your
time this morning. I just have, very quickly, a question, since
it has been referenced a number of times this morning, in
regard to the previous Inspector General's report. It has been
stated this morning that that IG report found zero political
influence.
It is my understanding that that report looked particularly
at Karl Rove's influence, and he was specifically mentioned as
having had zero political influence.
My question would be, What about the Vice President? Was he
mentioned in that report, and was he cleared of any political
influence? Anybody can answer.
Mr. Walden. Mr. Chairman, I would be happy to take it on.
You have people here from the IG's office from Interior. I do
not believe the Vice President was specifically referenced, at
least in the letter to Mr. Kerry. If you can give me just a
second, though, and I believe you have a copy of the letter.
They do specifically look at Karl Rove because he is the one
who is referenced in the Wall Street Journal story. But they go
on. Let me see if I can find.
The quote is: ``The complexity of the issues involved and
the ferocity of debate clearly fueled the flames of suspicion
and distrust in this matter. Based on the results of our
investigation, however, we conclude that the Department
conducted itself in keeping with the administrative process
governing the Klamath project, that the science and information
utilized supported the Department's decisions and that no
political pressure was perceived by any of the key
participants.''
I read that to be no political pressure was perceived by
any of the key participants. I do not know, and you could ask
the IG's folks----
The Chairman. We will.
Mr. Walden.--whether or not they found only Karl Rove,
political pressure was not there, or if the statement is as it
reads, clearly that no political pressure was perceived by any
key participants. It obviously goes on to say many other
things.
The Chairman. But if the Vice President is not part of the
executive branch, I guess he is not part of the political
system either.
Mr. Walden. No, but he could bring about political pressure
perhaps in this issue, but they found no political pressure
perceived by any key members. So I think they look at that,
they went up and down the chain at the Department of the
Interior.
I think the other part is the comment that the agency
conducted itself in keeping with the administrative process
governing the Klamath project. I was on some of those phone
calls on the fish issue because I was concerned about the loss
of the salmon season and all of that, and I can tell you, in
conversations that I was involved in with Secretary Gutierrez
and others, there was a lot of pressure being put on by those
of us who are concerned about the salmon cutoff, fishing
cutoff, just to the opinion that it reminded me a lot of the
pressure that some of us put on in terms of the water cutoff.
It is no different.
It is much like your letter to the USDA, saying, We have a
drought in West Virginia. Help our farmers. They are taking
water out of the storage ponds and trying to figure out what to
do for hay and all of that. We all react that way.
Now, here, it does not reference the Vice President
specifically.
Mr. Thompson. If the gentleman would yield, I just want to
point out that, on those conversations with Commerce, I think
it was a different issue. The issue was through which window
were we going to assess the harm done to those in the fishing
industry.
It has been the practice in the past to wait until after
the season is over, all of this fish are in, then check the
numbers, and that process could run a very long time. It was
our fear, and, I think, Mr. Walden's as well, that if that were
allowed to happen, that those fishermen would be over. They
would lose their boats, their businesses, and everything else.
What happened was the decision to truncate the season
itself was an indication as to how much fish these guys would
be able to catch, and that was the pressure, if you will, that
folks were trying to encourage the Secretary of Commerce to
speed up the process to do the evaluations. We already knew
they could not catch any fish. We did not have to wait until
after the season or after all of the fish were weighed. They
could not catch fish, given the season that they had. They were
given weeks in which to fish, and those weeks were the times
that the fish were not in those areas. It was virtually no
season at all. That was the only pressure, I think, that was on
Mr. Gutierrez.
The Chairman. The Chair recognizes the gentlelady from
Washington.
Mrs. McMorris Rodgers. Thank you, Mr. Chairman. Just going
back to this letter, when this issue was visited in 2004, I was
going to point out another part of the letter in response to
your question, Mr. Chairman, and this is on the bottom page 5,
where the letter says: ``Finally, we found no evidence of
political influence affecting the decisions pertaining to the
water in the Klamath project. The individuals at the working
levels denied feeling pressured at all. Based on our experience
in the past OIG investigations, these would have been the most
likely sources to provide evidence of such influence. The
consistent denial of political influence by government
officials was corroborated by the view of outside scientists
and one former DOI official, all of whom denied feeling
pressure, political or otherwise.''
This is the Inspector General's letter that we referenced
earlier.
The Chairman. The gentleman from California, Mr. Miller.
Mr. Miller. Thank you, and I want to thank my colleagues
for testifying.
I just want to sort of go over this one more time. What I
find interesting, just in terms of the atmospherics here, the
Bureau has worked for a number of years on this habitat and
these fisheries, and they have made a determination that
diverting water would harm the two Federally protected species.
That causes a blowup in the basin. That blowup gets the
attention of the Vice President of the United States. He
decides, one of the people quoted him as saying, that ``we have
got to get the science on the side of the farmers,'' not
exactly a request for an objective review.
He then proceeds to see how he can get the science on the
side of the farmers, and he calls a person at the Department of
the Interior, Ms. Wooldridge, who we later find out had serious
lapses of ethical standards during her career that impacts
other investigations of conflict of interest that take place,
and she makes it very clear that, again, the Vice President--is
that the farmers have to be able to farm. That is where he is
coming from on this question, not, does this science work?
So through Wooldridge to Gale Norton, he gets the Academy
to review this. They do a one-month review. That review is
critiqued by the National Marine Fisheries, which determines
that they object to that plan. That critique is scuttled. The
Academy comes on, makes their findings, and all hell breaks
loose when the dead fish show up at the mouth of the river. Now
we have massive cooperation. This sounds like a lot of people
who burn down their own house and now have a barn raising going
on before the winter comes.
This cooperation did not exist there. This was a fight over
these resources. There were scientific determinations made.
Those were then overruled, albeit perhaps in a scientific
fashion, but when you have weekly calls from the Vice
President's office on this, you have these determinations made.
It is clear in the Department of the Interior. With all due
respect, those are not the atmospherics that tell me that this
was an independent review.
It is turned out to be a catalyst for working together in
the region, but it turned out to be a very expensive catalyst,
and, in fact, you could have taken the initial review, and you
could have made a determination that, based upon the Bureau of
Reclamation, these actions were necessary to take so that the
plan would work because those were not part of the original
plan. Now they have been fast tracked because of your
involvement, and things are working in the region.
So I appreciate the testimony of my colleagues, but, with
all due respect, this was not done on the merits; this was the
result of a concerted effort to move the science, and I think
it was rather successful, to the detriment of the fisheries and
the impacted individuals and businesses and what have you. But
it is not sufficient just to suggest, well, because now we have
all of these projects going forward, and the Federal government
has spent a lot of money, that, therefore, we can accept this
as a way of arriving at scientist conclusions about how we
should proceed in these very complex watersheds. I just refuse
to accept that as a rationale for doing that. Thank you, Mr.
Chairman.
The Chairman. The gentleman from South Carolina, Mr. Brown.
Mr. Brown. Thank you, Mr. Chairman. I am just curious,
being from the East, I am sure we have similar problems but not
to this severity. Have you all had an opportunity to sit down
together before and to talk about this issue, or this is kind
of an open opportunity to come this morning? Have you all had
an open dialogue on this before this hearing, or is this your
first opportunity? I am sure that is a big issue for you back
over in Oregon and, I guess, in California.
Mr. Walden. Well, Mr. Brown, I appreciate your comments. We
have had dialogue, and we have fought. We have represented
different areas of the basin and different constituencies in
the basin. They have fought in the basin. They have fought to
nearly violence, although that has been held back, frankly, in
very difficult times. If you are losing your ranch, or you have
lost your fishing boat, you have lost your livelihood, and you
are pretty angry about it. I have had constituents who died
over this or committed suicide over this.
These are very, very difficult problems, and for the first
time in 100 years when the water was cut off, these families
were left with a drought. As you find in the discussions, the
Inspector General's comments to Senator Kerry or in the
National Academy of Sciences and our sea report, there is
debate in the scientific community about what should happen
here.
This is more art than science, and so when some of us
asked, and the Department proceeded with a request to the
National Academy of Sciences to review the science and the
decisions, it was knowing that whatever this independent team
came out with, we would have to live with, and we did not know,
when we asked, that they would say that the science basically
was sound but that two of the main principal decisions were a
high risk and probably should not have been made.
You will hear from the head of this Committee later today
about its independence, its independent peer review of its own
work, and that there was not political influence in the
process, or Members would have stepped out of the process. His
testimony is before you.
There are a lot of allegations out there, none of which, I
believe, have been independently reviewed like this has, and we
knew we would have to live with this.
The key, though, is, and you have all mentioned it are the
26 parties who, today, are tired of fighting and want to find a
solution. That solution, by the way, may come before this
Committee, and we are all going to have to be willing to step
up and evaluate it and see if it is something we can swallow,
but it may involve removal of three of the main dams on the
Klamath River. It may involve enormous conservation
investments, much like the Florida Everglades.
This, as my colleague from California, Mr. Thompson, said,
a huge basin. It is very complex, and so we are talking more
than we have.
Mr. Herger. Thank you, Mr. Chairman, and I would like to
respond to my good friend, Mr. Miller's, comments.
I think we need to look at what happened here. Now, I
represent, along with Mr. Walden and Mr. Doolittle, over
100,000 people that live in an agricultural area that have been
farming here since World War I that had 100 percent of their
water shut off. Now, those of you who have never been in
agriculture, can you imagine where you are dependent on
farming, and you do not have any water? Not half of it shut
off, not 25 percent of it shut off, but it was completely shut
off.
I would ask my good friend from California, Mr. Miller, if
you were representing a group that had all of their water shut
off, and it was done supposedly in the name of science, would
you not be requesting that, at least, we look the science over,
that we investigate to make sure it was good science that we
used in determining destroying the entire economy and the
people's lives?
Mr. Miller. I would say that the gentleman has a different
request than the Vice President made, which was ``to get the
science on the side of the farmers,'' is the quote.
Mr. Herger. Let me just finish. Let me, again, ask my
question. If you had all of your water shut off, would you not
be requesting that a group of those--this is what they do--the
Academy of Sciences--that is who we asked for, that is where
they went, and we had 12 scientists, and they are the ones who
unanimously came up with the decision that this was not good
science. It was not good science that they shut all of this
water off. So that is really what this whole issue is about.
The Chairman. The Chair is going to have to cut the
gentleman off because I think we are diverting from the
original question of the gentleman from South Carolina quite a
bit.
Mr. Thompson. On the original question, Mr. Chairman, I
will just tell the gentleman that Greg and I have sat down. I
have legislation that I have had for a while that encompasses
much of what the working group is looking at doing to fix it
up. I talked to him about joining forces to get that passed. I
even went up to Greg's district in the upper Klamath basin and
met with the Klamath water users and talked to them, trying to
figure out if there is a way.
So there is an interest on the part of some to bring about
resolve in a pleasant way, and I do not think that is out of
our reach. But we do have to have honest and transparent
facilitators on this. As I said earlier, we cannot have
somebody plan the science.
The Chairman. The gentleman from Michigan, Mr. Kildee.
Mr. Kildee. Thank you, Mr. Chairman. I yield time to the
gentleman from California, Mr. Miller.
Mr. Miller. I think one of the points is, as I understand
it, the Research Council of the National Academy, it says:
``The NRC Committee found sound scientific bases for
recommendations of the biological opinion involving coordinated
operations, reducing ramping flows below the main stem dams.
The Committee did not, however, find scientific basis for NIM's
recommendation of the increased minimum flows on the Klamath
main stem.''
So this bastion of scientific second-guessing that took
place was then cherry picked for specific purposes. That is
according to Mr. Lewis, who was the chairman of the committee.
Mr. Walden. May I respond?
Mr. Miller. That was the testimony that was given to this
Committee beforehand.
Mr. Walden. I have read that, but I think my understanding
of it is they evaluated all of the decisions and all of the
science, and they said----
Mr. Miller.--you could operate this basin in a different
fashion than perhaps the Bureau suggested----
Mr. Walden. Correct.
Mr. Miller.--but they did not endorse the lake levels and
the flows that were then implemented.
Mr. Walden. Right, right. That was our complaint.
Mr. Miller. Everybody who questioned the result was sort of
kicked aside, in one fashion or another.
Mr. Walden. Actually, I think you are making my case. The
issue here was the decisions by Fish and Wildlife to keep upper
Klamath Lake at a higher lake level because the historical
record indicated that the largest sucker kill-offs occurred at
a higher lake level, not lower lake level, and the NRC, and I
do not have the exact language in front of me--found that
releasing the warm water out of the lake to increase flows
might actually imperil the coho they are supposed to save
because there are actually cold-water microsprings in the
Klamath River that the coho would come around and cool down. If
you added warm water out of the upper Klamath Lake, that is
where you caused the problem.
So the portion you read, my friend, Mr. Miller, actually
was the issue the NRC found that led to the conclusion that the
decisions made were at high risk and were not based on
historical data the agencies had, and that is what caused the
water cutoff.
The Chairman. The Committee is hearing from Mr. Lewis
later, so we can make that determination. The gentleman's time
has expired.
The Chair, in order to allow our colleagues to get on with
the rest of the schedule today, asks, rather generally, which
Members have questions, and I will recognize you. The
gentlelady from California, Mrs. Napolitano.
Mrs. Napolitano. Just very quickly to all of you, what
would you suggest, what would you think, would help resolve
disputes within the agencies regarding the scientists so that
we do not face this again? What steps should be taken? What
should be put into place?
What recommendations would you have to be able to ensure
that future renderings are not politically motivated, are not
totally one way for the farmers and one way for the state but,
rather, a cohesive--you are talking about? What would you say
would be a way of doing it?
Mr. Walden. If I might, Mr. Chairman, I think, on these
decisions, especially involving listed species, there should be
an independent peer review of the data, of the scientific data.
Let us face it. Even biologists may have their own agenda. That
is not outside the realm of possibility.
The point is, having an independent peer review would sort
that out, would find out if there is an agency problem, and
would find out if there is political pressure that should not
be there, and that is, frankly, why I had legislation to do
that that this Committee considered and passed. It is why we
asked for an independent peer review by the National Academy of
Sciences.
I really think, when the life of the species is on the
line, or the life of the farmers or the fishermen are on the
line, or the tribal obligations are on the line, having an
independent outside look where there is no conflict of
interest--these people are all vetted but are also some of our
most brilliant scientists--give us a second opinion.
Mrs. Napolitano. You talk about the National Academy of
Sciences, but what about the National Research Council?
Mr. Walden. That is a division of the National Academy of
Sciences. There is the National Research Council, there is the
National Institute of Medicine, the National Institute of
Engineering, and there are some others. They fall under the
National Academy of Sciences.
So the 12-member committee of the NRC is actually under the
National Academy of Sciences, and then their work is
independently reviewed within the National Academy to make sure
there is no political influence and that it is done properly.
Mrs. Napolitano. Anybody else?
Mr. Thompson. Mrs. Napolitano, the other panel will have
agency people, and you can ask them. I would suggest that we
stay within the process that has worked fairly well for so
long. For instance, do not sidestep the Section 7 consultations
when these thorny, vexing issues come forward. We saw that
here. We saw that, as I understand it, in the delta with the
smelt.
Mr. Doolittle. Well, I would just observe that there is a
lot that is not understood in this area. Mr. Herger stated in
his testimony that they had similar water conditions in 1988
and no fish die-off. No one has figured out why that was the
result there versus what the result was here, with those
similar water conditions in 2000.
So that, I think, puts added importance on having this
independent peer review, recognizing you are not going to have
perfect knowledge about this, and in order to avoid doing harm
in the solutions you come up with, you want to make sure you
have at least got the best approach that we are capable of
getting, recognizing you do not have perfect knowledge.
When the water was cut off, it produced a devastating
result, not only for the farmers but for the environment in
that region as well. You saw the picture of the wildlife
refuge, one of the biggest wildlife refuges in the country. It
was dried up. So you want to be more careful about what
happens.
I am glad you are going to hear from Dr. Lewis because I
think, as Greg talked about, this was independent. This was
peer reviewed. This was a better analysis than the agency's----
Mrs. Napolitano. Mr. Doolittle, I have one more thing, and
I am sorry to cut you off. Because I was reading in the
testimony that there is a reference about an implementation of
the ethics rules, and it has not yet been implemented. Would
you believe that continued oversight of ethics within the
agencies, and I am not just talking about this one agency--I am
talking about all agencies--that should be honest, transparent,
and with integrity that the people of this country demand of us
and of them?
Mr. Doolittle. Well, I am not going to disagree with that
statement.
The Chairman. The gentleman from Idaho, Mr. Sali.
Mr. Sali. Mr. Chairman, can I yield to the Ranking Member?
Mrs. McMorris Rodgers. Thank you, Mr. Sali.
I just wanted to ask a quick question of the panel, and I
find it interesting that really we are disputing today the
words that were in a Washington Post article versus the words
that we have from the office of an Inspector General and the
findings of the office of Inspector General.
On the NSA study team, Mr. Walden, I wanted just to ask
you, does not that team also include some representative from
Trout Unlimited and the Nature Conservancy?
Mr. Walden. Madam Ranking Member, I believe my assistant,
Vanna White, here has a list of the peer review of National
Academy of Sciences report, and so these are the people who did
the peer-review work of the report, and then I believe we have
the members of the NAS committee that actually wrote the
report.
So the chart to the left indicates the scientists who did
the investigation and the report, and the chart to the right is
the peer-review group that then reviewed the work of the other
scientists, and you can see that Trout Unlimited was on there;
a consultant from McCall, Idaho; university professors from
Berkeley and Oregon State and Wisconsin; the Nature
Conservancy; Natural Resources Scientists, Inc.; Johns Hopkins.
These are some of the best in the country, if not the
world, in these areas of expertise. So you had a different
brain trust that did the initial report, and then you had
another group that reviewed it as well. They have very, very
rigorous standards all the way through.
So that is why I think you make a really important point
here. You have the world's leading scientists, a peer-reviewed
report that looked at all of this information, and an Inspector
General's report that looked at similar charges involving White
House involvement that ruled there was not any undue influence
against a quote in a Washington Post story.
I am going to default to, with all due respect to the
press, of which I have a journalism degree, I am going to
default to the NRC because it is actually a peer-reviewed
report.
Mrs. Napolitano. Thank you.
The Chairman. The gentleman from Washington, Mr. Inslee.
Mr. Inslee. Thank you. I think one problem is that the Bush
administration really has been in a war with science on a whole
host of issues for the last seven years. This is not unique,
that the President's administration has corrupted science in
the administration of the Endangered Species Act. It is a
pattern and practice through all of these issues.
We hear from the surgeon general about suppressing science
when it comes to family planning information just in the last
couple of weeks. We hear from Jim Henson, who has had his
scientific information attempted to be suppressed; our most
brilliant scientists at NASA and the world on this subject
suppressed by the administration regarding climate change.
We have had suppression of science regarding stem cells,
and now we have repeated instances of failure to follow the law
and the science and the Endangered Species Act. I think the
problem with the administration now is that to come and ask for
the trust of the American people on any of these contentious
issues is damaged.
I can understand why Americans are concerned about this.
Look at the track record. In the first George Bush's four years
in office, the first President George Bush listed 234 species
as endangered.
Mr. Brown. Mr. Chairman.
Mr. Inslee. Let me continue. President Clinton listed 521.
President George Bush and his administration has not listed, as
far as I can tell, one single endangered species unless
required to do so by court order or action of citizens
requiring the administration to act.
The problem is that this administration has a pattern and
practice of suppressing science on a whole host of subjects. So
when we come to a situation which is contentious in the
Klamath, and I can understand the tensions involved on all
sides of this controversy, it has no credibility with the
American people in making these decisions.
When you have an administration that has not listed an
endangered species, are we supposed to think that when George
Bush was elected, the pressures on American species have
disappeared, that somehow we do not have endangered species
anymore, unless a court orders them to be listed?
In fact, what we get is the Assistant Attorney General that
George Bush hired says--this is Assistant Secretary of Interior
Craig Manson, a fellow whose job it is to follow this law. What
does he say about the Endangered Species Act? ``If we are
saying that the loss of species in and of itself is bad, I do
not think we know enough about how the world works to say
that.''
Mrs. McMorris Rodgers. Would the gentleman yield?
Mr. Inslee. No, just a moment. This is a guy whose job it
is to make sure we follow the science on the Endangered Species
Act.
So I guess the question I would pose to you, is there
something to suggest that the reason for the Endangered Species
Act has been removed because these species are not threatened
anymore, and has the credibility of this administration been
damaged so that it makes it difficult for all of us in these
difficult situations to really trust the Federal government
regarding science?
Mr. Walden. Mr. Chairman, Mr. Inslee, I would say this on
the Klamath situation. I have not seen Judge Manson's quotes in
full----
Mr. Inslee. That was not in regard to the Klamath
situation; it was regarding another listing.
Mr. Walden. Right. Without getting into that, let me just
speak about Klamath.
In 1993, the Fish and Wildlife Service listed the sucker
fish as a threatened or endangered species, and in that report
they said they did so principally because of the loss of
habitat because of the blockage at Chiloquin Dam that had been
there almost 100 years. That was in the Clinton administration.
That was one of those listed species.
When this Committee began to look into the problems there,
we said, Why do not we remove Chiloquin Dam? So I passed
legislation that brought the farmers, the fishermen, and the
administration together. We are on a track to do that now.
The same issue came up about sucker larvae that were being
literally sucked out the A canal and find themselves scrambling
around on farmers' fields, which is not very good habitat for
fish, because prior administrations had not pushed hard to
screen the A canal. It is a multimillion-dollar project. They
went into hyper speed and got that screen in--we have a slide
of that--to deal with that issue.
So I think, at least in this case, you can take comfort in
knowing the NRC reviewed the data and the decisions by the
agencies under the Bush administration, because that is the one
independent look we have. You can look at some of the progress
that has been made in the basin, including the water bank,
including the equipment. funds, including some of these
conservation efforts and habitat.
I think, actually, I would love the Committee to come out
and go on the ground with me and see some of the progress that
has been made in this case. There is still an enormous amount
of work to be done, though. Whenever these decisions in science
can be transparent to the public and to us, as lawmakers, we
will have better decisions, and we will have less undue
influence by either side or any side, and the more we can have
them independently peer reviewed, the more reliable those data
will be.
Mr. Inslee. Well, I appreciate your trying to give me
comfort. I do not have it yet, but I appreciate your optimism.
Thank you.
The Chairman. Do any other of my colleagues on the
Committee have questions? If not, gentlemen, we thank you for
being with us today. Per our previous discussions, you are free
to join us on the dais and participate in the remainder of the
day's hearing, by unanimous consent.
Mr. Miller. I assume we will get a second round of
questions before non-Members of the Committee.
The Chairman. That is correct. Members of the Committee
will be recognized for the first and second round of questions
first. OK.
Mrs. McMorris Rodgers. Mr. Chairman, I have another
unanimous consent request. I would like to request the next two
panels be combined because there is going to be questions
raised by the first panel that I think the third panel witness
would be able to help answer and clarify.
The Chairman. The Chair would respond, since we do have
votes coming up shortly on the House Floor, the Chair would
like to proceed with Panel 2--these two individuals, I think,
are going to receive a number of questions--before we consider
joining the other panels.
Mrs. McMorris Rodgers. OK. Panel 2 and 3?
The Chairman. No. I would rather keep Panel 2, the
Inspector General's, separate.
Mrs. McMorris Rodgers. OK. I had another request, unanimous
consent request, that, given the importance of this hearing
today, that the witnesses be sworn, that their testimony be
sworn.
The Chairman. The Chair would respond to the gentlelady
that the witnesses were not notified in advance that they would
be sworn in, and, therefore, the Chair does not feel it is fair
to ask them now to take an oath of testimony.
Mrs. McMorris Rodgers. I would find that unfortunate. I
would like to point out that, under the False Statements
Accountability Act of 1996, witnesses should be aware that
giving false testimony or answers to Congress could result in
Federal perjury penalties of up to five years in prison and
$250,000 in fines.
The Chairman. The Chair appreciates the gentlelady reading
that warning. The Chair would expect that common sense would
direct the witnesses to not do otherwise but to tell the truth.
Mrs. McMorris Rodgers. Thank you.
Mr. Miller. Mr. Chairman, you do not get to lie to
Congress, either under oath or not under oath.
The Chairman. The gentleman makes a good point.
The Chair will now call Panel 2: Mary Kendall, the Deputy
Inspector General, U.S. Department of the Interior; and John M.
Seeba, the Assistant Inspector General for Auditing, U.S.
Department of Commerce.
We welcome you to the Subcommittee. We do have your
prepared testimonies, and, without objection, they will be made
a part of the record. Mary, do you want to proceed first?
Ms. Kendall. Mr. Chairman, thank you.
The Chairman. And it appears we will have time for
testimony, and we would then have to come back for questions.
STATEMENT OF MARY KENDALL, DEPUTY INSPECTOR GENERAL, U.S.
DEPARTMENT OF THE INTERIOR
Ms. Kendall. Mr. Chairman and Members of the Committee, I
want to thank you today for the opportunity----
The Chairman. Do you have the microphone drawn to you and
turned on, please?
Ms. Kendall. Is it on now?
The Chairman. Better.
Ms. Kendall. I am sorry. Thank you for the opportunity to
be here today to testify about a recent Office of Inspector
General investigation that calls into question the ethical
integrity of science-based decisions at the Department of the
Interior.
As you know, we recently issued a report of investigation
on Deputy Assistant Secretary for Fish, Wildlife, and Parks
Julie MacDonald. Our investigation was based on allegations
that MacDonald had unreasonably interfered with scientific
findings relative to the Endangered Species Act issues that she
had conducted herself outside the chain of command by
interacting directly with field personnel, and, in doing so,
she had been heavy handed with staff.
During the course of our investigation, we also discovered
that Ms. MacDonald had provided nonpublic information to
friends and colleagues outside of the Department and the
Federal government. In one instance, this nonpublic information
was provided to individuals who had litigation pending against
the Department.
Our investigation determined that MacDonald did, in fact,
inject herself personally in a number of Endangered Species Act
issues, particularly those that had the potential to impact her
home state, California. Although the Endangered Species Act
issues were clearly within the realm of her responsibilities,
Ms. MacDonald involved herself far more profoundly than might
be expected of a Deputy Assistant Secretary.
Based on our interviews, it became clear that Ms.
MacDonald's management style was abrupt and abrasive, if not
abusive. Her conduct demoralized and frustrated her subordinate
managers, intimidated field personnel, and led to at least one
instance in which the substitution of her judgment for that of
the field was simply wrong and was promptly overturned by the
Court.
An issue of equal concern, however, was our discovery of
the release of nonpublic information by Ms. MacDonald to her
friends and colleagues, to lawyers and lobbyists, who had
interests in variance with the Department, and to an individual
with whom MacDonald had become acquainted through Internet
role-playing games.
Although Ms. MacDonald claimed that she tried to respond to
everyone equally when asked for information, our investigation
made clear that close acquaintance with Ms. MacDonald equated
to special access to information and documents.
As you know, we are conducting a follow-on investigation
into Ms. MacDonald's role in the decision to withdraw the
Sacramento splittail. Our preliminary findings suggest that
while she probably should have recused herself from involvement
in the Sacramento splittail decision, due to a conflict of
interest, she did not appear to materially affect the outcome
of this particular decision with her involvement.
We are continuing to investigate several attendant ethics
and conflict-of-interest issues related to this matter.
Overall, the impact of Ms. MacDonald's conduct on the
Department of the Interior has been considerable. It has cast a
vast cloud over the Department's scientific integrity.
Having reviewed the Endangered Species Act decisions in
which Ms. MacDonald involved herself, the Department has
determined that eight additional decisions must now be reviewed
and perhaps reversed or modified. Other decisions may be at
risk for legal challenge simply by virtue of Ms. MacDonald's
personal involvement.
This is not the first time that the Office of Inspector
General has been called upon to investigate allegations of
scientific misconduct, although it is the first case that
involves someone at the Deputy Assistant Secretary level.
More than five years ago, following our investigation into
allegations of tampering with scientific field samples and
findings related to an Endangered Species Act study, we
recommended that the Secretary ask the Department's chief
scientist to convene a working group consisting of internal and
external scientists to review and make recommendations on how
to restore rigorous science to the Endangered Species program
and to design and implement a Department of the Interior
scientific code of ethics.
While an effort was undertaken to develop a draft code of
scientific conduct, it has never been finalized or issued
Department wide. While we believe that this code needs to be
revived in its present form, applicable primarily to employees
and volunteers who participate in hands-on scientific activity,
we also believe that it needs to be expanded to specifically
include policymakers like Ms. MacDonald.
This case highlights the need for just such a policy, one
in which clear expectations of scientists and policymakers
alike are articulated, and processes are established by which
disputes and differences of opinion can be efficiently and
constructively resolved.
As recently as last week, the Inspector General had a
discussion with Secretary Kempthorne about this very matter and
advised him of the stalled policy document and the need to
expand its application. We are hopeful that somehow the
Congress, the Secretary, and our office can work together
constructively to rid the Department of conduct that brings
disrepute to its programs and decisions and replace it with an
ethical culture in which honest differences can be resolved,
and sound, science-based decisions are advanced with integrity
and transparency.
This concludes my formal testimony. Thank you for the
opportunity to appear this morning, and I will be happy to
answer any questions.
[The prepared statement of Ms. Kendall follows:]
Statement of Mary L. Kendall, Deputy Inspector General,
U.S. Department of the Interior
Mr. Chairman and members of the Committee, I want to thank you for
the opportunity to testify today about a recent Office of Inspector
General (OIG) investigation that calls into question the ethical
integrity of science-based decisions at the Department of the Interior
(Department or DOI).
As you know, we recently issued a Report of Investigation on Deputy
Assistant Secretary for Fish and Wildlife and Parks, Julie MacDonald.
Our investigation was initiated based on allegations that MacDonald had
unreasonably interfered with scientific findings relative to Endangered
Species Act (ESA) issues; that she had conducted herself outside the
chain of command by interacting directly with field personnel; and, in
doing so, she had been heavy-handed with staff.
During the course of our investigation, we also discovered that
MacDonald had provided non-public information to friends and colleagues
outside of the Department and Federal Government. In one instance, this
non-public information was provided to individuals who had litigation
pending against the Department. The information provided to them served
as the basis of a motion to re-open the record in Federal District
Court.
Our investigation determined that MacDonald did inject herself
personally in a number of ESA issues, particularly those that had the
potential to impact her home state, California. Although ESA issues
were clearly within the realm of her responsibilities, MacDonald
involved herself far more profoundly than might be expected of a Deputy
Assistant Secretary. Based on our interviews, it became clear that
MacDonald's management style was abrupt and abrasive, if not abusive.
Her conduct demoralized and frustrated her subordinate managers,
intimidated field personnel, and led to at least one instance in which
the substitution of her judgment for that of the field was simply
wrong, and was promptly overturned by the court.
An issue of equal concern, however, was our discovery of the
release of non-public information by Ms. MacDonald to her friends and
colleagues--to lawyers and lobbyists who had interests in variance with
the Department, and to an individual with whom MacDonald became
acquainted through internet role-playing games. Ms. MacDonald's
various, and sometimes contradictory, explanations for releasing
information that she knew was not releasable, suggests that she was
uninformed, disingenuous or both. Although Ms. MacDonald claimed that
she tried to respond to everyone when asked for information, our
investigation made clear that close acquaintance with Ms. MacDonald
equated to special access to information and documents. That she failed
to recognize the seriousness of these actions is most disconcerting.
As you know, we are conducting a follow-on investigation into Ms.
MacDonald's role in the decision to withdraw the Sacramento Splittail,
as well as some related ethics issues. Our preliminary findings suggest
that while she should probably have recused herself from involvement in
the Sacramento Splittail decision due to a conflict of interest, Ms.
MacDonald did not appear to materially affect the outcome of this
particular decision with her involvement. We are continuing to
investigate several attendant ethics/conflict of interest issues
related to this matter.
Overall, the impact of Ms. MacDonald's conduct on the Department of
the Interior has been considerable. It has cast a vast cloud over the
Department's scientific integrity. Having reviewed the ESA decisions in
which Ms. MacDonald involved herself, the Department has determined
that eight additional decisions must now be reviewed, and perhaps,
reversed or modified. Other decisions may be at risk for legal
challenge, simply by virtue of Ms. MacDonald's personal involvement.
These impacts will undoubtedly be both time-consuming and costly.
This is not the first time that the Office of Inspector General has
been called upon to investigate allegations of scientific misconduct,
although it is the first case that involved someone at the Deputy
Assistant Secretary level. More than five years ago, following our
investigation into allegations of tampering with scientific field
samples and findings related to an ESA study, we recommended that the
Secretary ask the Department's Chief Scientist to convene a workgroup
consisting of internal and external scientists to review and make
recommendations on how to restore rigorous science to the Endangered
Species Program, and to design and implement a DOI Scientific Code of
Ethics. While an effort was undertaken to develop a Draft Code of
Scientific Conduct, it has never been finalized or issued Department-
wide. While we believe that this code needs to be revived in its
present form applicable primarily to employees and volunteers who
participate in ``hands-on'' scientific activity, we also believe that
it needs to be expanded to specifically include policy-makers, like Ms.
MacDonald.
It would be unproductive to speculate as to whether or not such a
policy might have prevented the inappropriate conduct of Ms. MacDonald
in this instance. This case, however, highlights the need for just such
a policy, one in which clear expectations--of scientists and policy-
makers, alike--are articulated, and processes are established by which
disputes and differences of opinion can be efficiently and
constructively resolved.
The Inspector General has testified previously about ethics
failures on the part of senior Department officials--taking the form of
appearances of impropriety, favoritism, and bias. Ms. MacDonald is
among a number of high-level Interior officials who have left the
Department under the cloud of OIG investigations into bad judgment and
misconduct.
As recently as last week, the Inspector General had a discussion
with Secretary Kempthorne about this very matter, and advised him of
the stalled policy document and the need to expand its application. We
are hopeful that somehow the Congress, the Secretary, and the Office of
Inspector General can work together constructively to rid the
Department of conduct that brings disrepute to its programs and
decisions, and replace it with an ethical culture in which honest
differences can be resolved, and sound, science-based decisions are
advanced with integrity and transparency.
This concludes my formal testimony. Thank you for the opportunity
to appear before the Committee today. I will be happy to answer any
questions you may have.
______
The Chairman. Thank you. Mr. Seeba.
STATEMENT OF JOHN M. SEEBA, ASSISTANT INSPECTOR GENERAL FOR
AUDITING, U.S. DEPARTMENT OF COMMERCE
Mr. Seeba. Thank you, Mr. Chairman. Mr. Chairman and
Members of the Committee, I appreciate the opportunity to
discuss the Office of Inspector General's work on the
environmental review process for the long-term operations,
criteria, and plan, or OCAP, for the Central Valley project and
the state water project.
On October 8, 2004, 19 Members of the U.S. House of
Representatives requested that the Commerce and Interior IGs
review allegations that the Bureau of Reclamation, ``in its
haste to finalize water contracts in California, has improperly
undermined the required NOAA fisheries environmental review
process.''
On October 22, 2004, the Southwest Regional Office issued a
biological opinion stating that the long-term OCAP, essentially
the roadmap for how the Central Valley project and the state
water project will manage the water supply, would not
jeopardize endangered and threatened species.
We conducted an audit of the review process used to issue
the October 2004 opinion. We sought to determine whether the
Marine Fisheries Service followed its policies, procedures, and
normal practices for consultations in issuing the OCAP opinion.
Our purpose was not to evaluate the science involved but,
rather, the integrity of the process.
Our assessment of the process leading to the biological
opinion revealed that the Southwest Regional Office did not
follow its normal procedures.
First, it initiated the consultation with insufficient
information rather than waiting until it received all required
details from the Bureau of Reclamation.
For comparison, we examined 10 other consultations
conducted by the Southwest Region, and none were initiated
without sufficient information.
Second, the Southwest Regional Office did not follow the
policies and procedures in place that are intended to ensure
that biological opinions are sound. For example, the
designated, regional, Section 7 coordinator did not review or
clear the OCAP opinion, a key management control. The
coordinator told us she did not complete her review of the
draft because the Assistant Regional Administrator for
protected resources had stepped in to work on the draft with
the lead biologist and then sent the draft to the Bureau of
Reclamation for review.
She did not clear the final because the Assistant Regional
Administrator sent it out when she was away from the office
conducting training. She added that she would not have signed
off on the opinion anyway because she believed the conclusion
did not match the scientific analysis.
According to the coordinator, the only other time that she
could recall the Assistant Regional Administrator performing
her duties was during the 2002 consultation on the Klamath
operations.
Third, the Southwest Region has Section 7 coordinators and
field offices, who are supposed to review opinions for clarity,
conciseness, and logical analysis and conclusions, but the
local coordinator in this case said she was instructed by her
managers to send the opinion to the regional office without
completing a review.
Finally, the Office of General Counsel never cleared the
opinion, though legal review and clearance is part of the
Marine Fisheries Service consultative process to ensure that
opinions comply with pertinent laws and are defensible.
The regional general counsel told us that his office
reviews highly controversial or politically sensitive opinions
and highlighted the OCAP opinion as a specific example of the
type of opinion that should be reviewed. He did know, until our
auditors told him, that no one on his staff had cleared that
opinion.
We also looked into allegations that a draft jeopardy
opinion had been initially provided to the Bureau of
Reclamation and was later changed to a no-jeopardy without
sufficient justification. We found no corroborating evidence
that this occurred. The administrative record only documented
delivery of a no-jeopardy draft to the Bureau of Reclamation in
September 2004.
In summary, by initiating the consultation without
sufficient information, and by failing to obtain review and
clearance from the appropriate Section 7 coordinators and the
Office of General Counsel, the Assistant Regional Administrator
circumvented key controls designed to ensure the integrity of
the biological opinion.
In responding to our report, NOAA agreed with our
recommendations to revise its policies and procedures and to
conduct an objective peer review of the OCAP opinion.
In early 2006, three independent reviewers examined the
OCAP opinion. Two of those reviewers found that the agency had
not used the best available science, and all made
recommendations to improve NOAA's consultations from a
scientific perspective. NOAA's science staff generally agreed
with the reviewers' recommendations.
On April 26, 2006, the Bureau of Reclamation reinitiated
consultation on the 2004 OCAP biological opinion to include
newly designated, critical habitat. We understand that this
consultation with the Bureau of Reclamation is ongoing.
A complete text of our report can be found on the OIG's Web
site at the Department of Commerce, and, again, I appreciate
the opportunity to discuss our work on this subject and welcome
any questions you have.
[The prepared statement of Mr. Seeba follows:]
Statement of John M. Seeba, Assistant Inspector General
for Auditing, U.S. Department of Commerce
``The National Marine Fisheries Service Review Process for the
California Central Valley and State Water Projects' Biological Opinion
Deviated from the Region's Normal Practice''
Mr. Chairman and Members of the Committee, I appreciate the
opportunity to discuss the Office of Inspector General's work on the
environmental review process for the long-term Operations, Criteria,
and Plan (OCAP) for the California Central Valley Project and the State
Water Project.
On October 8, 2004, 19 members of the U.S. House of Representatives
requested that the Commerce and Interior IGs review allegations that
the Bureau of Reclamation, ``...in its haste to finalize water
contracts in California, has improperly undermined the required NOAA
Fisheries environmental review process....'' On October 22, 2004, the
southwest regional office issued a biological opinion stating that the
long-term OCAP--essentially the roadmap for how the Central Valley
Project and the State Water Project will manage the water supply--would
not jeopardize endangered and threatened species.
We conducted an audit of the review process used to issue the
October 2004 opinion. We sought to determine whether NMFS followed its
policies, procedures, and normal practices for consultations in issuing
the OCAP opinion. Our purpose was not to evaluate the science involved,
but rather the integrity of the process.
Our assessment of the process leading to the biological opinion
revealed that the southwest regional office did not follow its normal
procedures. First, it initiated the consultation with insufficient
information, rather than waiting until it received all required details
from the Bureau of Reclamation. For comparison, we examined 10 other
consultations conducted by the southwest region, and none were
initiated without sufficient information.
Second, the southwest regional office did not follow the policies
and procedures in place that are intended to ensure that biological
opinions are sound. For example, the designated regional Section 7
coordinator did not review or clear the OCAP opinion--a key management
control. The coordinator told us she did not complete her review of the
draft because the assistant regional administrator for protected
resources ``stepped in'' to work on the draft with the lead biologist
and then sent the draft to the Bureau of Reclamation for review. She
did not clear the final because the assistant regional administrator
sent it out when she was away from the office conducting training. She
added that she would not have signed off on the opinion anyway because
she believed its conclusion did not match the scientific analysis.
According to the coordinator, the only other time she could recall the
assistant regional administrator performing her duties was during the
2002 consultation on the Klamath operations.
Third, the southwest region has Section 7 coordinators in field
offices, who are supposed to review opinions for clarity, conciseness,
and logical analysis and conclusions. But the local coordinator in this
case said she was instructed by her managers to send the opinion to the
regional office without completing a review.
Finally, the Office of General Counsel never cleared the opinion,
though legal review and clearance is part of the NMFS consultative
process to ensure that opinions comply with pertinent laws and are
defensible. The regional general counsel told us that his office
reviews highly controversial or politically sensitive opinions and
highlighted the OCAP opinion as a specific example of the type of
opinion that should be reviewed. He did not know until our auditors
told him that no one on his staff had cleared that opinion.
We also looked into an allegation that a draft ``jeopardy'' opinion
had been initially provided to the Bureau of Reclamation and was later
changed to ``no jeopardy'' without sufficient justification. We found
no corroborating evidence that this occurred. The administrative record
only documented delivery of a no jeopardy draft to the Bureau of
Reclamation in September 2004.
In summary, by initiating the consultation without sufficient
information, and by failing to obtain review and clearance from the
appropriate Section 7 coordinators and the Office of General Counsel,
the assistant regional administrator circumvented key internal controls
designed to ensure the integrity of the biological opinion.
In responding to our report, NOAA agreed with our recommendations
to revise its policies and procedures and to conduct an objective peer
review of the OCAP opinion.
In early 2006, three independent reviewers examined the OCAP
opinion. Two of those reviewers found that the agency had not used the
best available science and all made recommendations to improve NOAA's
consultations from a scientific perspective. NOAA's science center
staff generally agreed with the reviewers recommendations. On April 26,
2006, the Bureau of Reclamation (BOR) re-initiated consultation on the
2004 OCAP biological opinion to include newly designated critical
habitat. We understand that this consultation with the BOR is ongoing.
A complete text of our audit report on this issue can be found on
our website at http://www.oig.doc.gov.
Again, I appreciate the opportunity to discuss our work on this
subject and welcome any questions you may have.
______
The Chairman. We thank you for your testimony.
Due to votes on the Floor, the Committee is going to stand
in recess prior to questioning, hopefully, for no more than 30
minutes.
[Whereupon, at 11:40 a.m., a recess was taken.]
The Chairman. The Committee will come to order. Prior to
the recess, we had heard from our Panel No. 2, and it is now
open for questions.
I do thank both of you for your testimony, and I want to
begin with you, Ms. Kendall, and first thank you for your
public service that you and Inspector General Devaney have
performed in seeking to improve the accountability at the
Department of the Interior, not only for science-based
decisions, which, of course, is the subject of the hearing
today, but also in regard to oil and gas royalty management and
many other matters that come within our jurisdiction.
Unfortunately, there is no shortage of new business that
appears to be generated by this administration for our
Inspector Generals. I would like to ask about a previous
Inspector General investigation--I believe you heard me ask it
of the previous panel--concerning the allegation of Karl Rove's
involvement in influencing Klamath policy.
In March 2004, the Inspector General concluded, and I
quote, that ``the Department conducted itself, in keeping with
the administrative process governing the Klamath project, that
the science and information utilized supported the Department's
decisions and that no political pressure was perceived by any
of the key participants.''
Yet, on June 2, 2007, the Washington Post reported that,
shortly after Inauguration Day 2001, the Vice President of the
United States called then Deputy Chief of Staff and staff for
the then Secretary of the Interior, Gale Norton, concerning
Klamath policy. This, according to the Post, was an initial
contact and a sustained effort by the Vice President and his
office to influence Klamath water and ESA decision-making.
The Post story states, and I quote: ``Because of Cheney's
intervention, the government reversed itself and let the water
flow in time to save the 2002 growing season, declaring that
there was no threat to fish. What followed was the largest fish
kill the West has ever seen. With tens of thousands of salmon
rotting on the banks of the Klamath River, characteristically,
Cheney left no tracks.''
Now, while I am not asking you to validate the Post's
reporting, I do want to know specifically whether the Inspector
General's 2004 Klamath investigation considered any involvement
of the Vice President in reaching the conclusion that ``no
political pressure was perceived by any of the key
participants.''
Ms. Kendall. If I may, Mr. Chairman.
The Chairman. Yes, you may.
Ms. Kendall. Our focus in that investigation was on the
very specific allegation that Karl Rove influenced the Klamath
decision based on his attendance at a meeting of senior
political appointees.
As you know, the Office of Inspector General is not a
subject matter expert in terms of science. We are not qualified
to opine on science. What we did in that investigation was to
follow the process, which, in the past, when we were in an area
where we do not have subject matter expertise, is the best
indicator of transparency and due process. In the end, we do
not know what we do not know.
All of the information available to us at the time we
issued that report led us to the conclusion that Mr. Rove did
not exercise undo influence. However, I do not believe it ever
occurred to our investigating agent to ask the question, did
the Vice President himself lend influence? It may not, in the
end, change the final conclusion, but it may color the
transparency of the process in a different shade.
I understand, Mr. Chairman, that we have provided the
Committee with a copy of our full report, including the report
of interview of Sue Ellen Wooldridge. I would leave it to the
Committee to draw its conclusions based on review of that
interview. My personal feeling is we did not have all of the
information that may have been available to her, and we did not
know, at the time, what questions needed to be asked to
ascertain certain information that she may have had.
The Chairman. So it would appear, in response to my
question, then, that there was no consideration of involvement
by the Vice President. You had no facts. You had no tracks, so
to speak, by which you could be led through such an
investigation, and, therefore, none was done.
Ms. Kendall. That is fair, yes.
The Chairman. OK. Let me ask you one last question. Given
Mr. Devaney's reputation for toughness and thoroughness in his
investigations, in your opinion, would the Inspector General
have investigated the involvement of the Vice President as to
whether those contacts did, in fact, have any influence on the
Klamath decision-making at the Department of the Interior?
Ms. Kendall. I believe, in retrospect, we would have
followed any tracks that were available to us, any information
that was made available to us. I would say that, in this case,
we did not have jurisdiction even over Mr. Rove, but we did
have jurisdiction to determine what influence, if any, was
exerted on DOI officials.
The Chairman. So, in characteristic Vice President fashion
of undisclosed locations and undisclosed tracks, there were no
tracks there that could have led you to believe that he would
have had an influence.
Ms. Kendall. At the time of conducting the investigation,
we did not have any such information.
The Chairman. Let me ask you for a clarification. Did Sue
Ellen Wooldridge not volunteer to you that the Vice President
had regularly called her?
Ms. Kendall. She did not.
The Chairman. She did not voluntarily give you that
information.
Ms. Kendall. That is correct.
The Chairman. OK. Thank you.
Mr. Sali is recognized, the gentleman from Idaho.
Mr. Sali. Thank you, Mr. Chairman.
Ms. Kendall, there are some questions on how the Inspector
General carried out the report on Julia MacDonald, and I
understand that your office interviewed her twice before the
report was issued. Did your office ever meet with her for an
opportunity to rebut the specific allegations that were
contained in the written report?
Ms. Kendall. Our office does not, as a practice, provide
the subjects of investigations an opportunity to rebut.
In the matter of process, we will provide the Department
with the conclusions of our investigation, basically, the
facts, and the Department then takes whatever action it
determines is appropriate, and part of that process is to give
someone who is the subject of an OIG investigation the
opportunity to be heard for the Department.
Mr. Sali. I understand that your office received some
additional information from Ms. MacDonald in the form of a
letter where she addressed the allegations in the report.
Ms. Kendall. I am afraid I am not aware of that letter,
sir.
Mr. Sali. All right. Let us see. Ms. Kendall, on page 1 of
your report on Ms. MacDonald, you mention that you discovered
no illegal activity on her part. Is that correct?
Ms. Kendall. I am afraid I do not have the report in front
of me, but I believe we presented the investigation to either
the U.S. Attorney's Office of the Department of Justice, Main
Justice, but I do not have specific recollection, and they
declined to prosecute.
Mr. Sali. Let me quote from page 1 of your report: ``We
discovered no illegal activity on her part.'' Do you stand by
that statement?
Ms. Kendall. I do, yes.
Mr. Sali. So she will not be prosecuted criminally for any
of the activities that have been discussed in front of the
Committee today.
Ms. Kendall. Any of the activities contained in that
report, yes.
Mr. Sali. Is it possible that she will face some kind of
future questions about criminal activity?
Ms. Kendall. I think it would be improper for me to
speculate on that. I do not know.
Mr. Sali. Is your office investigating her at this time?
Ms. Kendall. We are conducting an investigation into the
splittail decision and some attendant conflict-of-interest and
ethics issues related to that decision.
Mr. Sali. But you are unable to comment on that further at
this time. Is that correct?
Ms. Kendall. That is correct.
Mr. Sali. All right. Thank you. That is all I have, Mr.
Chairman.
The Chairman. The gentleman from California, Mr. Miller.
Mr. Miller. Thank you. Ms. Kendall, thank you very much for
your work. You have, obviously, a very difficult job, but thank
you for the manner in which you handle it.
When did you begin your investigation on Ms. MacDonald?
There have been two. Is that correct?
Ms. Kendall. Yes. There is the one that, I believe, you
have a copy of the first report----
Mr. Miller. Right.
Ms. Kendall.--that was general in terms of her the
allegations of her interference with the Endangered Species Act
decisions, and then, I believe, we received a specific request
from this Committee to look into the specific decision
regarding the splittail, which was alleged to have impacted
property that she owned in California.
Mr. Miller. When did you first put the Department on notice
that you were initiating an investigation? What was that first
date?
Ms. Kendall. I apologize. I really do not have a specific
recollection of dates. The report may indicate when we began
the investigation.
Mr. Miller. My concern is that it appears that two of the
eight MacDonald decisions that DOI has now sort of self-
determined need additional review were made while she was under
investigation by your office, and three were made after she had
been personally briefed by Director Hall regarding
responsibilities and ethics and conduct.
I appreciate, for the moment, in the first study, you found
no illegal behavior, but, in your testimony today, you talked
about that she cast a vast cloud over this Department, and, in
fact, that her management style was abrupt and abrasive, if
not, abusive, and it led to at least one instance where the
substitution of her judgment for that of the field was simply
wrong and promptly overturned by a court.
I raise that in the sense that--we will talk to Fish and
Wildlife later--this was not a minor player in this field in
this region. She was apparently constantly involved in these
decisions. I just wonder how you separate the atmospherics that
she creates and the scientific outcome. You create atmospherics
in an organization, and the organization starts to take on
those characteristics very often.
I am just concerned here whether we are drawing lines
here--does it on the OCAP, saying, Well, we did not pass on the
scientific judgment. We looked at the ethics and the integrity.
It seems to me, those are hard lines to draw in terms of when
people are thinking about their careers, their decisions, and
who is interested in the outcome.
Ms. Kendall. I agree with you that they are hard lines to
draw. The line I would draw is the difference between illegal
and improper. We did determine that her conduct was improper,
although not illegal.
Mr. Miller. I appreciate that. That is a distinction you
have to draw. In your testimony, you suggest sort of that
situation, that our preliminary findings suggest, while she
probably should have recused herself from involvement in the
Sacramento splittail decision, due to a conflict of interest,
it does not appear that it materially affected the outcome of
that particular decision.
How did you arrive at that conclusion? Did you talk to the
affected parties?
Ms. Kendall. Exactly.
Mr. Miller. And they tell you what in that situation?
Ms. Kendall. Well, preliminarily, and I always have to
caution----
Mr. Miller. I understand this is ongoing.
Ms. Kendall.--because it is ongoing, but that decision was
going in the direction that it ultimately ended up, prior to
Ms. MacDonald's involvement.
Mr. Miller. So she had made inquiries into that decision.
She did not recuse herself so----
Ms. Kendall. She did not recuse herself, and it is my
understanding that there was involvement, that she did have
involvement, in that decision but that the decision was going
in the direction where it ended prior to her involvement.
Mr. Miller. Did she accelerate it, slow it down, move it?
Ms. Kendall. The details, I am afraid, I am not familiar
with. I just know that her involvement did not materially
affect the ultimate outcome. Whether it moved it quicker,
slowed it down, I just do not know.
Mr. Miller. You mentioned that you are continuing to
investigate several other attendant ethic conflict-of-interest
issues related to that matter, ``that matter'' being the
Sacramento splittail.
Ms. Kendall. Yes. There were several other questions that
the Committee posed in its request for our investigation. Those
are the other issues that we are addressing.
Mr. Miller. So those are not finished yet. Are you aware,
or do you have any knowledge, of how the Department made a
determination as to which of her involvements warranted further
investigation? They picked out, I think, eight--is it now 10?--
it is eight, I guess, that they said warrant a fairly decent
review, and other decisions did not. Are you aware of how those
were made?
Ms. Kendall. No, I am not, other than reports that I have
read.
Mr. Miller. OK. We will save that for the Department when
they come here. The question, and you have referred to it in
your statement, of the leaking of material to selected
individuals; that simply falls in the range of improper.
Ms. Kendall. Yes. There is an ethical code that--I am going
to have to summarize it from memory, but essentially not giving
preferential treatment and not sharing nonpublic information
with the public, and this is something that she did on both
accounts.
Mr. Miller. What was the Department's response to that?
Ms. Kendall. I do not know that we got a formal response.
Mr. Miller. All right. Thank you very much.
The Chairman. Let me follow up, if I might. You said, in
your testimony, that she was responsible, Ms. MacDonald was
responsible, for disclosure of nonpublic information to parties
who had litigation against the Department.
Ms. Kendall. In one instance, yes. There was a party in
litigation with the Department. My recollection is that she
provided an e-mail that indicated that there was some
disagreement within the agency and that then served as the
basis for the litigants to reopen the case in Federal District
Court.
The Chairman. And that is not illegal?
Ms. Kendall. Improper, not illegal.
The Chairman. It is a violation of Federal regulations, is
it not?
Ms. Kendall. Of Federal regulations, yes. I guess what I
would say is it is not a prosecutable crime.
The Chairman. What is the penalty in violation of Federal
regulations?
Ms. Kendall. It would be considered probably in the Code of
Conduct and Penalties in the Department's code, to consider
what she had done and what the appropriate penalty would be. In
my experience in the case of political appointees, that table
of penalties is not usually applied. It is sort of an all-or-
nothing kind of matter.
The Chairman. Did her resignation prevent further actions
against her?
Ms. Kendall. Exactly.
The Chairman. So it appears there is a policy that the best
witness-protection program is retirement.
The Chair recognizes the gentleman from Idaho.
Mr. Sali. Ms. Kendall, you are saying that Ms. MacDonald
would be subject to penalties based on the information, the
conclusions that were reached, in the report from your office.
Is that correct?
Ms. Kendall. Based on the factual information our office
provided to the Department, yes.
Mr. Sali. But you did not give her any opportunity to come
and rebut the conclusions that were made in that report. Is
that correct? I thought I heard you testify to that. Correct?
Ms. Kendall. That is correct.
Mr. Sali. So if you made a conclusion without all of the
information, your office might, if she still worked for the
agency, your office might have imposed a penalty on her without
giving her the benefit of responding in any way. Is that
correct?
Ms. Kendall. No, sir. Our office has no authority to impose
penalties on employees other than our own. We refer it to the
Department to consider whether or not to impose penalties. The
Department has that authority to do so or not, and perhaps not
in a political appointee situation, but if we talked about
general service employees, they would have due process, an
opportunity to be heard in response to the report that we
provide to the Department before a decision is made.
Mr. Sali. OK. You make that report without giving any
opportunity for Ms. MacDonald to rebut the conclusions in the
report. Is that correct?
Ms. Kendall. In essence, yes. The report itself is factual
in nature. We will often have a transmittal letter that draws
some conclusions of the Inspector General, but the report is
the factual basis for the Department to consider whether or not
to take administrative action against an employee.
Mr. Sali. I understand that Ms. MacDonald sent a certified
letter to your office in response to your investigation on her
and that your office is in receipt of that letter, and yet I
understand your testimony today is you are not aware of any
such letter. Is that correct?
Ms. Kendall. I am not personally aware, no.
Mr. Sali. Can you respond in writing, both to the Committee
and to my office directly, on whether that was received?
Ms. Kendall. I will.
Mr. Sali. Thank you. That is all I have for now, Mr.
Chairman.
The Chairman. The gentleman from Utah, Mr. Cannon.
Mr. Cannon. Thank you, Mr. Chairman. Just following up on
Mr. Sali's questions, do I understand this correctly, that you
talked with Ms. MacDonald on a couple of occasions, but you did
not give her an opportunity to respond specifically to the
particulars that you are investigating?
Ms. Kendall. Yes. That is true. When we conduct an
investigation, the opportunity for a subject to provide the
information that they wish is during the course of an
interview. It is not our practice, nor the practice of any
inspectors general that I know, to provide the subject of an
investigation an opportunity to review and rebut a report prior
to its issue.
Mr. Cannon. That is not quite the same thing. When you had
an interview with her, presumably, you asked her questions
about things you wished to understand, and that is an
appropriate thing to do. Has she ever had the opportunity to
know what the allegations were and to respond to those prior to
this letter that she has now sent to you?
Ms. Kendall. I believe, when she was interviewed, she knew
what the allegations were.
Mr. Cannon. Did you do the interview?
Ms. Kendall. No.
Mr. Cannon. Who did?
Ms. Kendall. The investigating agents.
Mr. Cannon. Why do you think that she knew what the charges
were, or what the allegations were, that she was dealing with?
Ms. Kendall. Well, my recollection of this investigation is
that because the allegations were so key to anything that an
agent would ask her that she would necessarily know what the
allegations were.
Mr. Cannon. Well, with all due respect, in my experience,
having followed some investigations, typically, agents who are
trying to figure out what is going on want to be obscure about
things. As a matter of policy, are your investigators trained
to, on the one hand, find information but, on the other hand,
give people the information they need so that they can actually
say, ``Oh, that is what you are talking about. Let me
explain''?
Ms. Kendall. I believe Ms. MacDonald was fairly explicit in
many of her responses when we interviewed her. My specific
recollection on the details is not, admittedly, great.
Mr. Cannon. When you say, ``when we interviewed her,'' you
mean your agent interviewed, and you reviewed the transcripts
of the interview.
Ms. Kendall. I do not believe I reviewed the transcripts of
the interview personally, but the record would have transcripts
of the interview if, in fact, the interview was transcribed.
Oftentimes, an interview is summarized in a report of
interview.
Mr. Cannon. I am wondering, when you say we handled this,
what was your involvement in the actual process of identifying
whether she understood the allegations that were made? You have
given me some conclusions about process. I would like to know
what you know about what she understood about the allegations
at the time.
Ms. Kendall. I personally do not know what she understood
about the allegations.
Mr. Cannon. So you are testifying that, in the ordinary
course of doing an investigation, she would.
Ms. Kendall. Both in the ordinary course and based on my
recollection of a review of the final report.
Mr. Cannon. Did you review any of the documents upon which
the final report was made or just the final report?
Ms. Kendall. I may have reviewed some of them. On this one,
I do not specifically recall.
Mr. Cannon. Have you seen the letter that she sent?
Ms. Kendall. No, sir.
Mr. Cannon. So you are probably not in a very good position
to talk about the specifics that she was charged with and may
or may not have understood during the course of the
investigation.
Ms. Kendall. Clearly, I am not, sir.
Mr. Cannon. Are the Inspector General's e-mails and phone
logs suggest to the Freedom of Information Act?
Ms. Kendall. Subject to the Freedom of Information Act,
yes.
Mr. Cannon. And certainly available for this Committee, if
we want to look at those.
Ms. Kendall. If the Committee requests, I believe so.
Mr. Cannon. Now, apparently, your office is involved in the
critical habitat for the splittail fish and that the habitat is
something like over 200 miles from the MacDonald family ranch,
and that will be part of your investigation, I take it. What
plans do you have to meet with Ms. MacDonald and others
involved in the splittail fish issue?
Ms. Kendall. I do not know, sir.
Mr. Cannon. That is not an issue you are involved with.
Ms. Kendall. Not personally, no.
Mr. Cannon. Thank you, Mr. Chairman. I see my time is
almost ready to expire, so I yield back.
The Chairman. Thank you. The gentleman from California.
Mr. Miller. One of the questions was whether or not the
splittail listing document was edited in Washington after it
left Sacramento. Are you aware of that?
Ms. Kendall. The issue sounds familiar to me, but I am not
specifically aware, no.
Mr. Miller. We have this document that was supposedly
seriously edited, and it ended up taking the scientists' names
off of the document in Washington, but if you do not have
knowledge of it, then I will not pursue it with you. We will
pursue it elsewhere.
Mr. Seeba, let me ask you, in your testimony today, you
testify on the OCAP, which is, obviously, a very critical
document to the operation of this very complex water system in
California. To paraphrase your testimony, or to go through it
specifically, they did not use sufficient data to make these
determinations and that the Section 7 coordinator was not able
to review or to clear this opinion, but they went forward with
it, and, in fact, that was taken out of her hands while she was
away. Is that correct?
Mr. Seeba. That is correct.
Mr. Miller. The testimony?
Mr. Seeba. Yes.
Mr. Miller. Who was the individual that reached in and made
that decision over her involvement?
Mr. Seeba. The Assistant Regional Administrator in the
Southwest Region.
Mr. Miller. And that is who?
Mr. Seeba. You will have to forgive me. This was a project
that was conducted before I actually arrived at the Inspector
General's office. Mr. James Lecky.
Mr. Miller. Mr. James Lecky, and when she added at that
time the section 7 coordinator, again a person critical to this
and required to this process, she would not have signed off on
the opinion because she believed that the conclusions did not
match the scientific analysis, and then she went on to say that
the only time she could recall an Assistant Regional
Administrator performing her duties was during the 2002
consultations on the Klamath River, and that again was Mr.
Lecky, was it not?
Mr. Seeba. That is correct.
Mr. Miller. And Mr. Lecky has since that time been
promoted?
Mr. Seeba. That is correct. He is actually out of that area
now, and is a----
Mr. Miller. I think he is back here.
Mr. Seeba. Yes. He is an intergovernmental liaison
position.
Mr. Miller. Well he does wander around a lot. So that is
probably helpful. We also then have the situation where you go
on to say that the Office of General Counsel never cleared the
opinion though legal review and clearance is part of this
process of the NMFS consultive process. That is correct?
Mr. Seeba. That is correct.
Mr. Miller. So you have here a document that is seriously
flawed from the process point of view, and does not hold up,
and in fact has been successfully challenged?
Mr. Seeba. That is correct.
Mr. Miller. And that when you had independent reviewers
look at it, they found that the agency had not used the best
available science, and had all made recommendations to improve
that, and that apparently has now caused it to be reinitiated,
is that correct?
Mr. Seeba. That is correct.
Mr. Miller. Again in your testimony my concern here is that
as you say your purpose was not to evaluate the science but
rather the integrity of the process. I am concerned about how
we reinitiate all of this within an organization that
apparently this was not a major decision but just ripped right
through the procedural requirements and safeguards of the law
so that the decision could stand up because a whole series of
decisions now flow from the OCAP document. What has happened
since then that should give us any confidence that this is
going to get that kind of independent review and reinitiating a
review of the science?
Mr. Seeba. Well the Marine Fishery Service and NOAA's
response to the OIG report basically said they were going to
review all their policies, practices and procedures, and in
fact when we had issued the report we had specifically targeted
just the southwest region because that is where the opinion was
generated from.
In their response they basically said we needed to look at
it from a nationwide perspective because there was conflicting
policies and procedures in different regions, and so NOAA came
back to put in a standardized process across the board, and as
part of the response, they also wanted to put in a quality
assurance process where they would do peer reviews on
subsequent opinions.
Mr. Miller. Is that done?
Mr. Seeba. We know that from their status reports that they
provide to us on our audit followup system that they have
initiated those. They put those changes in place. We have not
tested them.
Mr. Miller. And the Department of Interior, Ms. Kendall,
you reported has not yet taken your recommendations as to
controls? Am I correctly stating your testimony?
Ms. Kendall. In response to which report?
Mr. Miller. You said that you had raised with the new
Secretary the standards that should be put in place in the
office to prevent this kind of activity from happening again,
and that has not yet happened in the department?
Ms. Kendall. That is correct.
Mr. Miller. But, Mr. Seeba, you believe that they have put
in some of these safeguards?
Mr. Seeba. They have acknowledged that they have put those
in, in their status reports to us, and it is one of the things
that we will--once the next opinion is issued in what we expect
in 2008--is to initiate some followup ourselves to make sure
that they are in place.
Mr. Miller. What concerns me is that I think I appreciate
Mr. Lecky's title but it is my understanding he is also in
charge of NOAA's entire endangered species program. Are you
aware of that?
Mr. Seeba. That I cannot speak to. I do not know.
Mr. Miller. Well if that is the case, I find it rather
interesting that a person that twice reached into two very,
very important environmental and scientific processes so that
we could work out problems in these complex watersheds now has
been promoted to oversee the very process that he tampered
with, and so when you tell me that the safeguards are in place,
it sounds to me like the fox just got put in charge of the hen
house here, and he is now going to be in a position to
administer these new safeguards which were based upon the exact
violations that he administered prior to this.
Mr. Seeba. I would share the same concern with you. The
thing is is that if they do follow the processes, if they do
have the regional section 7 coordinators as well as the local
section 7 coordinators participate in the process as well as
get independent peer reviews that should hopefully ensure the
integrity of the science.
Mr. Miller. I appreciate your comment. There is a problem
here, Mr. Chairman, in that there is a pattern here. I
appreciate Ms. MacDonald would like to clear her name now. She
was in the employ of this agency when these findings were made.
She could have gone to the department counsel and stated her
case. From the time she tampered with the evidence and sent
confidential information to one party, to the oil companies in
that case, three years the department did not do anything.
Mr. Lecky, who reaches in and tampers with the process and
upsets and now sets back in time, money, effort and contractual
reliances the California operation of this water system, the
Federal state systems out there, he gets promoted. I appreciate
Mr. Tenek got the Medal of Freedom but there is a pattern here
where bad behavior you either resign or you are promoted, and
yet we are supposed to believe as we now see a reinitiation or
reexamination of these decisions and activities by these
personnel on which huge outcomes depend, certainly on the ones
with respect to the OCAP.
You know over 200 contracts have been signed based upon
those decisions and the representations about the science, and
I think we have a ways to go, and I really appreciate the work
of the Inspectors General on these matters but this goes to the
absolute integrity of these big systems and the public
confidence in them and the integrity of the Federal laws.
As I said in the beginning, if you do not like the law,
change it. You do not get to simply be cavalier with it and be
arbitrary and capricious to get the outcomes that are dictated
to you by political people in the department. It is tough
enough for these scientists to make these determinations and to
stand with them when they do the best job they possibly can,
and to have a bunch of political appointees starting to ride
roughshod over them is the beginning of the end of this
process.
We have all had hotly contested environmental matters taken
up in our respective Congressional districts but you do not get
to put the ham handed approach of the Administration's
political operation on one side of the scale, whether it is the
Vice President's ham handed or whether it is Mr. Lecky's ham
handed or it is Julie MacDonald's ham handed, you have really
destroyed the integrity of the difficult decisions that people
in these departments have to make, and I want to again thank
you for holding this hearing but I think we have a ways more to
go in determining some of these answers but the Inspectors
Generals have been very helpful. Thank you.
Mr. Sali. Mr. Chairman, are we still under the five-minute
rule for questioning?
The Chairman. Yes, we are, and we are still recognizing
members of the Committee first before we go to those members we
have allowed to sit on the dais with us.
Mr. Sali. Well we have a number of members that are here.
The Chairman. We still have members of the Committee that
we have not recognized yet.
Mr. Sali. I understand that. Mr. Miller just went on for 12
minutes, and if we are going to have a five-minute rule to----
The Chairman. Well I think I have been very fair in
allowing you all to go over time too.
Mr. Miller. It sounds like a long time when I ask
questions.
Mr. Sali. It does.
The Chairman. The Chair recognizes the gentlelady from
California, Ms. Napolitano.
Mrs. Napolitano. Thank you, Mr. Chair. And I too have grave
concerns about the confidence factor of the Administration, of
the agencies themselves. But to both of you--and I appreciate
your forthright testimony--but what kind of policies or
procedures have been developed and implemented within the
agency to address the concerns you raised in your respective
reports, and are they satisfactory or do you think these
policies should be applied that are not? And I asked the
previous panel of Members of Congress the question about what
would work to be able to ensure that this does not happen
again.
Mr. Seeba. The one thing I would say from the Department of
Commerce's view is the independent analysis from these peer
review groups. They tend to be I would hope more objective and
provide a sound support or rejection of the findings for the
departments' staff. So to me that is one of the most critical
things where you can get outsiders essentially looking in and
doing their oversight over the science that we do.
Mrs. Napolitano. But are their recommendations generally
followed?
Mr. Seeba. Generally speaking, yes. We provide
recommendations, and they come back either with alternatives or
follow those recommendations. Generally they adhere to them.
Mrs. Napolitano. Ms. Kendall.
Ms. Kendall. In Interior's case, as a result of an
investigation that occurred now almost five years ago or three
or five years--my recollection is faulty--we did make a
specific recommendation that a policy document be developed and
implemented. It did get drafted. It made it through a draft
stage.
Mrs. Napolitano. But it was never implemented.
Ms. Kendall. It was not implemented, and in fact, even so
we do not feel that as it stands it would have addressed the
policymakers' role in decisions where I think that it should be
appropriately addressed.
Mrs. Napolitano. Do you think then that policies should be
implemented as soon as possible or why the stopgap? Why has it
not been implemented?
Ms. Kendall. I do not know why it was not implemented. I
think it should be revived and revised and then implemented.
Mrs. Napolitano. What do you both think might work that
would help resolve the disputes within the agencies regarding
scientists who feel political appointees have inappropriately
interfered with their work?
Ms. Kendall. In my view, I think that a policy and process
needs to address that as well so scientists who feel that there
is undue influence have a vehicle by which to resolve those
differences in some sort of established and known process.
Mr. Seeba. I would agree with Ms. Kendall. If you get the
scientists, especially the career scientists, throughout the
agency to work together and to essentially peer review
themselves and to make sure that they are looking at the best
available science and working cooperatively, I think that goes
a long way in getting the best possible science out there.
Mrs. Napolitano. Do you believe the agencies then in the
Interior and Commerce must work together to resolve these
issues, the ESA issues such as the NMFS and the Bureau of
Reclamation, so they can properly communicate and work together
to resolve not only disputes between the agency scientists and
political appointees but also between competing stakeholders of
the natural resources?
And I guess maybe I can point to the western water. We
often have water users conflicts with those that want water
kept in the river, and often no corrective action is taken by
the agencies to resolve it until there is a crisis, and then we
are you know trying to figure out what do we do now? And the
delta smelt being the perfect example. Are there any policies
you would recommend that might foster a better working
relationship between the agencies to help us find solutions,
real solutions, rather than more litigation?
Ms. Kendall. My sense is that it certainly is a multi-
agency issue. The question as to whether or not you can
establish policy that would govern all aspects of this sort of
decision I think is terribly ambitious and in some instances
the differences simply cannot be resolved which is why the
Administrative Procedures Act has a process by which those can
be resolved. Unfortunately so many of them end up in court but
that is the proper jurisdiction for resolution of the issues
that simply cannot be resolved.
Mrs. Napolitano. Thank you so very much. Any----
Mr. Seeba. I have no further comment.
Mrs. Napolitano. Yes. Thank you, Mr. Chair.
The Chairman. The gentleman from Maryland, Mr. Sarbanes.
Mr. Sarbanes. Thank you, Mr. Chairman. I just have a couple
of questions, and then I would be pleased to yield any balance
I have to Congressman Miller. I am sort of interested in--this
is following a theme of the questions here but it is more kind
of a philosophical question or a question about the culture
inside the Department of Interior--and that is well first off
the allegations that prompt your investigation, I mean how do
those manifest? Is it you start to hear a buzz, and then you
investigate it or is it more specific and concrete than that?
Ms. Kendall. It can be any one of many sources. We have a
hot line. We have a whistleblower protection Assistant
Inspector General who people are very comfortable coming to. We
have developed sort of I think a reputation where people feel
comfortable in coming and providing information directly. So it
can come from any number of sources. Oftentimes anonymous as
well.
Mr. Sarbanes. Given the work that you do, do you have a
sense of whether a particular agency can have a culture of
resistance to political manipulation and interference that is
high or low or medium in comparison with other agencies, and if
so, how would you judge it to be within the Department of
Interior relative to other organizations?
Ms. Kendall. Relative to other departments or agencies?
Mr. Sarbanes. Yes. Do you have any sense of that?
Ms. Kendall. I am not sure that I have a good sense of
that.
Mr. Sarbanes. Well then just based on your experience,
would you say there is a strong resistance or is the scientific
community because it is particularly attentive to you know
empirical evidence and keeping politics out, is it in some ways
more vulnerable when someone comes in who does not respect
that? If you could just speak to kind of the cultural
resistance that there can be or should be.
Ms. Kendall. Well I can maybe speak more generally about
it. I think the Department of Interior has so many things under
its jurisdiction that evoke high emotion, are very valuable to
people in many different forms, that the department is probably
barraged more than some other departments and agencies. As to
susceptibility, I really do not have a sense other than the
effort will be made to influence because the stakes are so
high.
Mr. Sarbanes. And if they are being barraged, if you have
an extra high level of intensity in terms of the pressures that
are brought to bear, that would raise the ante on making sure
there is a good, strong process in place that allows these
things to bubble up and sort of find the light of day I would
assume?
Ms. Kendall. I would agree with that.
Mr. Sarbanes. OK. No further questions. I would be pleased
to yield.
Mr. Miller. Thank you, Mr. Chairman. I just would like to
put in the record part of the staff developed timeline, and
that is that the March 27, 2007, the Interior IG published a
report on the activities of the Deputy Assistant Secretary
MacDonald, and no comment was issued by the Department of
Interior. A month later, April 30, MacDonald resigns from the
Department of Interior, and then before this committee, Deputy
Secretary Scarlett testifies before our committee telling the
committee members that Julie MacDonald strived to do what she
thought was her duty to ensure a quality product.
There is a major, major misfit here in terms of her
activities and the ethical views of the higher ups in this
department. I ask that that be made a part of the file of the
Committee.
The Chairman. Without objection, so ordered.
Timeline--DOI dates of interest
January 2001 - Gail Norton becomes Secretary of Interior. Posts
message on DOI website telling all new and existing employees that the
President wants them to pay extra attention to observing all the
standards of ethical conduct that apply to Federal employees, adding
``I would like to add my support to the President's Memorandum. It is
very important to me that all Department of the Interior employees
become familiar with and observe all the standards of official conduct
as they pursue their daily responsibilities.''
March 13, 2002 - Sue Ellen Wooldridge testifies before the
Resources Committee that the Secretary's general goals for science
within the Department were: high ethical and professional standards,
appropriate training and allocation of staff resources, independent
review of science when appropriate and time permits....''
July 2002 - Julie MacDonald joins the Department of the Interior as
Special Assistant to Assistant Secretary for Fish, Wildlife and Parks,
Craig Manson. She is promoted to Deputy Assistant Secretary (DAS) in
2004.
February 4, 2004 - DAS MacDonald sends, via email, a copy of the
non-public, classified internal FWS document, Interim Guidance for the
Designation of Critical Habitat under the ESA, to an attorney with the
Pacific Legal Foundation. According to the Inspector General, this
action was a violation of 5 C.F.R. Sec. 2635.703 (Use of Nonpublic
information)
April 28, 2004 - Assistant Secretary Craig Manson tells Members of
the Resources Committee at a hearing that the same critical habitat
guidance document--that Members had sought for some time--would be
released ``later that week,'' but it never was.
January 2005 - FWS Southwest Regional Director Dale Hall announces
a new policy, prohibiting regional scientists from using any new
information on species genetic diversity discovered after the initial
listing of a species as endangered when determining the relative risk
of extinction.
February 5, 2005 - Union of Concerned Scientists and PEER release
their survey of Fish and Wildlife Service scientists. Despite Agency
directives that they should not respond to the survey, almost 30% of
scientists do anyway. Almost half of those respondents reported that
they ``have been directed for non-scientific reasons, to refrain from
making jeopardy or other findings that are protective of species.'' 70%
of scientists and 89% of scientist managers knew of cases where ``DOI
political appointees have injected themselves into Ecological Services
determinations.'' Several respondents identified DAS MacDonald by name
as a political appointee who is making scientific determinations.
March 6, 2005 - DAS MacDonald receives a $9,628 ``Special Thanks
for Achieving Results'' award for her performance in the 2004 Senior
Executive Service performance cycle. A Freedom of Information Act
request by the Endangered Species and Wetlands Report shows that there
is no paperwork in the file providing justification for the award. The
award was approved by DOI's Executive Resources Board which included
Assistant Secretary for Policy Management and Budget Lynn Scarlett, DOI
Chief of Staff Brian Waidmann, Solicitor David Bernhardt (then Deputy
Chief of Staff for Secretary Norton), DOI Deputy Secretary Steven
Griles, and DOI Solicitor Sue Ellen Wooldridge.
June 20, 2005 - 163 scientists send a letter of protest to Dale
Hall, explaining that the new Southwest Region's policy on using
genetic information on species ``does not reflect the best available
science''. Hall does not respond.
October 2005 - Dale Hall becomes Director of Fish and Wildlife
Service, claims scientific integrity is his ``highest priority''.
Begins to examine how ESA packages were reviewed in Washington, both in
the FWS and by DAS MacDonald...and ``became troubled by the apparent
lack of clarity in the division of responsibilities.''
February 3, 2006 - Director Hall issues memorandum ``Maintaining
Integrity in Our Scientific Decision-Making Process'' to address the
lack of clarity he had observed between the division of
responsibilities as related to policy and scientific determinations.
February 7, 2006 - Hall meets with MacDonald and DASs Smith and
Hoffman regarding the memorandum, and tells Scarlett the results of the
meeting were successful from ``both a team concept and integrity of
science approach.''
February 8, 2006 - Hall sends an email to MacDonald, Paul Hoffman,
David Smith and others affirming the discussion of February 7th.
April 11, 2006 - Interior Inspector General receives anonymous
complaint from FWS employee alleging unethical and illegal activities
by DAS MacDonald.
April 13, 2006 - Final critical habitat designation for California
red-legged frog is published in Federal Register. Decision has now been
identified by FWS as one needing additional review based on
inappropriate interference by DAS MacDonald.
May 26, 2006 - Dirk Kempthorne becomes the 49th Secretary of the
Interior. Makes ethics briefings his first priority and in his first
written message to DOI employees and at his first all employees meeting
he emphasized ethics compliance.
August 15, 2006 - Proposed critical habitat for 12 species of
Hawaiian picture-wing flies is published in the Federal Register.
Decision has now been identified by FWS as one needing additional
review based on inappropriate interference by DAS MacDonald.
October 30, 2006 - Article appears in the Washington Post,
regarding DAS MacDonald and her consistent rejection of FWS' staff
scientists' recommendations under the ESA.
November 9, 2006 - Final critical habitat designation for the
Canada Lynx is published in the Federal Register. Decision has now been
identified by FWS as one needing additional review based on
inappropriate interference by DAS MacDonald.
Late January 2007 - The Secretary of the Interior receives the
report of the Interior IG's investigation into DAS MacDonald. No
apparent action is taken.
March 27, 2007 - The IG report is publicly released on the
activities of DAS MacDonald. No comment is issued by the Department of
the Interior.
April 30,2007 - DAS MacDonald resigns from the Department of the
Interior.
May 9, 2007 - DS Scarlett testifies before the Natural Resources
Committee, telling the Committee Members that ``Julie MacDonald strived
to do what she thought was her duty to ensure quality product.'' When
asked ``yes or no'' as to whether there was an ongoing effort to
systematically review the decisions that DAS MacDonald might have
improperly influenced she does not answer the question, instead
pointing to the policy Director Hall had put in place in February 2006.
May 22, 2007 - DS Scarlett sends a memo to Dale Hall asking him to
``please review all work products that were produced by the Service and
reviewed by Ms. MacDonald and determine if any of those packages
require any revision based on her involvement.''
June 26, 2007 - Former Deputy Secretary Steven J. Griles, the
subject of two Inspector General Investigations, is sentenced to prison
for his role in obstructing an investigation regarding influence
peddling at DOI by convicted lobbyist Jack Abramoff.
June 27, 2007 - More than a year after taking office, the Secretary
introduces his 10-point plan to make DOI a ``Model of an Ethical
Workplace.'' A key aspect of that plan is the establishment of a new
Conduct Accountability Board that would be led by Assistant Secretary
for Water and Science, Mark Limbaugh.
July 13, 2007 - Assistant Secretary for Water and Science, Mark
Limbaugh, resigns to take a job with the Ferguson Group, a lobbying
firm representing local and state water agencies with interests before
the Department of the Interior.
July 17, 2007 - Lyle Laverty appears before the Committee on
Environment and Public Works in the Senate to discuss his nomination as
Assistant Secretary for Fish, Wildlife and Parks. Assures Senators that
he believes ``science in the foundation of sound public policy,'' and
that he was ``committed to ensuring that scientific integrity is
maintained and scientific determinations are accurately and clearly
communicated to policy makers.'' He also pledged, that if confirmed, he
would ``immediately..ask the Solicitor's Office and the Designated
Agency Ethics Officer to brief the staff on the rules and regulations
with regard to the protection of and disclosure of information received
by the Office.''
______
Mr. Miller. I yield my time back.
Mr. Sarbanes. No further questions.
Mr. Mike Thompson. Would the gentleman yield?
Mr. Sarbanes. Yes.
Mr. Mike Thompson. Thank you. Thank the gentleman for
yielding. Thank you, Mr. Rahall. I just have a question for Mr.
Seeba, and Mr. Miller talked about it a little bit, and that
was the violation of the section 7 process, and how you stated
in your statement that the only other time that anyone knew of
that happening was on consultation of the Klamath operations.
Can you just kind of tell us why it is important to do the
section 7, and the fact that they did violate it in Klamath, is
that something that is going to be or needs to be further
investigated?
Mr. Seeba. Well what happened the Assistant Regional
Administrator basically served in the role of the section 7
coordinator in his statements. He felt at the time that the
discussions with the staff and the section 7 coordinator was
not making progress. So that is why he stepped in. At this
point, it is a violation of the process. I think that is the
extent that you can say. These are senior biologists and
scientists that are experts in their field and would be
expected to participate in these particular type of reviews.
To me you know in this process she was cut out of the
process, and I think it probably was in the end vindicated with
the peer reviews that came out subsequent to that that her
instincts were correct. That there was not the best available
science there, and the department and the Marine Fishery
Service needs to ensure that those processes are not violated.
The Chairman. The Chair will continue to recognize members
of the Committee before recognizing our guests, and the next to
be recognized will be the gentlelady from Guam, if she has any
questions, Ms. Bordallo.
Ms. Bordallo. I do not have any questions, Mr. Chairman.
For the next panel, yes.
The Chairman. OK. The gentleman from Washington, Mr.
Inslee.
Mr. Inslee. Thank you. I have been very concerned about the
wholesale failure during this Administration to enforce the
Endangered Species Act in a variety of contexts. You may have
heard me earlier citing the statistics that in the first
presidency of the first George Bush the Administration had
listed I think it was over 250 species that needed protection.
While President Clinton was in office it was over 500, and this
Administration not one single species has been listed for
protection unless it was by court order or lawsuit or citizen
petition.
This appears to be an enormous systemic failure of the
Administration to act. Now there are only two explanations for
that. One, there has been a sudden miracle that no longer these
species are threatened by climate change and development and
over harvest and over resource development or two this
Administration is not doing its job on a systemic basis to
provide for the protection of these species, and I am very
concerned about that.
We have talked about numerous specific today instances of
potential misconduct but I would just like to ask you about
whether there has been an effort to restore the integrity of
this whole process that to me just looking at the results
clearly is dysfunctional and not getting these species listed
for protection. Now if this is beyond your scope, let us know
but any comments you can give us in that regard I would
appreciate it.
Ms. Kendall. I appreciate your latter comment. I do not
feel qualified to comment on the endangered species process
overall. It is simply not something that I have any personal
expertise in, and we develop sort of instant expertise when we
investigate issues that come to our attention such as the one
that I have testified about here today.
Mr. Inslee. Well I am sorry you could not help but we want
to get to the bottom of this eventually. Have either of you
been involved in a review of the owl recovery plan in the
northwest? We are very concerned that there has been again a
political decision to reduce the protection in the northwest of
the spotted owl, and it appears that science again has not been
followed in that context.
The spotted owl has multiple threats, including invasion of
the barn owl into its territory, and now the reduction of
protection is not just the owl we are concerned about but
multiple species because we now have a reduction or elimination
of the need to evaluate multiple species in this habitat. Have
either of you reviewed that situation?
Ms. Kendall. We have not.
Mr. Seeba. We have not either.
Mr. Inslee. Well at some point I encourage you to do so
because looking at the testimony of Dr. Dominick DellaSala and
others I think you will find cause for great concern there that
the science again has not been listened to, and some have said,
well we do not have to look for these other species now because
it is all the barn owl's fault. In fact, it should heighten our
need for scientific inquiry rather than reduce it.
I want to ask something, Ms. Kendall, you talked about the
limitation on ability to control political appointees if you
will. In other words, even if you find some problem that there
is some limitation because some of these rules would not apply
to political appointees or something of that nature. Could you
elaborate on what you were referring to?
Ms. Kendall. What I believe I said was that when it comes
to misconduct or violations of regulation or ethical rules,
when it pertains to political appointees, although the
department has a conduct and discipline manual that is usually
applied to the general service population of employees, with
politicals--at least in my experience--it is sort of an all or
nothing kind of thing.
Either it is something worthy of having someone removed
from office or they are retained. I am not giving you a legal
answer. I am just telling you that in my experience this is how
it works.
Mr. Inslee. Well just listening to you it sounds like we do
not really have an ethics criteria that applies to the
political appointees, and perhaps that is one of the reasons we
have had this. Is that the situation?
Ms. Kendall. Well it does apply to them. The problem, if
you will, is that it is not in the Inspector General's hands to
make a decision as to what happens to an employee. It becomes
the department's responsibility in essence to make a
determination as to what happens to someone who based on facts
that we provide in the department's estimation either is or is
not a violation.
Mr. Inslee. Well your purview is somewhat limited I realize
to criminal violations, but these species are going downhill
whether or not there were criminal violations because we are
not getting them listed, and I hope this hearing today somehow
jump starts that process. Thank you.
The Chairman. The gentleman from Rhode Island, Mr. Kennedy.
Mr. Kennedy. Thank you, Mr. Chairman. Just overhearing this
kind of discussion I would like to ask just some broad
questions, and those pertain to the transparency to these
investigations and how the public gains some kind of insight
into how when this happens they have confidence that all that
has been going on is fully brought to light, and insofar as
that is concerned, I would like to ask when there is any
political appointee or White House official, Administration
official, if the Vice President or whomever calls a staff
member of an agency and exerts political influence on a
scientist to try to influence the scientific finding, are those
calls logged?
Are they part of the record much like as we as Members of
Congress we write letters to agencies petitioning on behalf of
constituents and so forth? All of that is part of the official
record. In the course of your investigations in all of these
types of matters, are all of these thoroughly vetted where
these calls are easily accessible to the public?
Ms. Kendall. I am not sure if I completely understand your
question.
Mr. Kennedy. The question is simple. The question is: When
the President's Administration in time and time and time again
has manipulated scientific evidence for its own political
purposes, is that transparent now for the public record? For us
to be able to put on the public record for everyone to see? Is
that now able to be sifted through so we can now publicly
document that?
And in the course of your investigations when you go
through these reviews, can you now cull that and say, oh here
is these records because we did record that? Did the staff
record these calls? Were they supported insofar as were they
encouraged to record these calls? Can you give us some sense of
whether that was the environment in which they worked?
Ms. Kendall. I am not aware of any recordation of calls
like this. Oftentimes we will scour email and emails often are
our very best friend but if there is no hard record, phone
calls are not necessarily as easy as say an email, and we might
be able to find record of a call coming in from an outside
phone number but in this case, in the case of our Klamath
investigation, we did not have those records.
Mr. Kennedy. Well we did have the story from The Post that
showed the Vice President called staff.
Ms. Kendall. We did but our investigation was conducted now
over three years ago at the time, and we did not have that
information available to us.
Mr. Kennedy. I guess that is what I am looking for is to
try to find out how many other instances like that we did not
get the full story of because there was not that kind of
encouraged transparency that we need in order to get the full
confidence of the American public back in their institutions
and the science upon which these decisions are being made, and
I understand that you are putting in place this new peer review
to kind of remedy that but I would just hope that you could
give us some assurance that you from here on out would tell us
what kind of resources you are making available to staff and
the like of these various agencies if they ever feel like their
work is being suppressed due to political pressure.
Ms. Kendall. I feel certainly from my office's perspective
that people feel comfortable in letting us know these things.
Mr. Kennedy. OK. Well we certainly look forward to ensuring
that that is the case, and I think that is the purpose for
these hearings.
Mr. Miller. Would the gentleman yield?
Mr. Kennedy. I would be happy to yield.
Mr. Miller. Just if I might ask either one of the
witnesses, where does a person go today if they are under
political pressure? I mean sometimes these give the appearance
of career decisions. Where do you go to independently deal with
this problem?
Mr. Seeba. I would say in the departments most IG's have
these or either you call the hotline, you write a letter to the
IG's office you know explaining the situation. GAO has a
hotline also that you can call in either anonymously or you
know giving your name. So I think those are ways that you can
provide information you know to the organizations that
something is not going correctly.
Mr. Miller. And then you initiate? You make a determination
based upon whether to gather additional evidence or questions
and whether or not later to initiate an investigation, and the
beginning of that is anonymous?
Mr. Seeba. That is correct. I mean generally speaking, you
evaluate the credibility of the information.
Mr. Miller. Yes.
Mr. Seeba. And then initiate. If it is credible, you tend
to initiate investigations.
Mr. Miller. And that facility is recognized within the
agencies that that is a safe place to go so to speak?
Mr. Seeba. Absolutely.
Mr. Miller. OK. Thank you. Thank you. I just wanted to
follow on what Mr. Kennedy was----
Mr. Kennedy. No. I would just say that I think that
probably does not engender much confidence on the staff's part
when you make the point earlier as you did that you have the
former Surgeon Generals all sign that they were all muzzled
when they were Surgeon Generals, when you have the top
scientific officials in this country all say that their global
warming findings were all tampered with by oil and gas
lobbyists hired by the Administration to rewrite documents that
they had written, when you have time and time again this
Administration rewrite scientific documents, and then do so
with absolute impunity.
It seems to me if you are a scientist you would say well
why should I stick my neck out? There is certainly nothing to
be gained. If I stick my neck out, nobody's head is going to
fall for politicizing this process because that does not seem
to be against the norm in this town, and I think it seems like
it is a very intimidating process. If you do call and be a
whistleblower, nothing happens. That is a very intimidating
environment it seems to me if you are a scientist actually
working for the public good in this town.
The Chairman. The gentlelady from Guam, Ms. Bordallo.
Ms. Bordallo. Thank you. Thank you, Mr. Chairman, for
giving me the opportunity. Ms. Kendall, I have a question for
you. Your testimony says that the impacts of Ms. MacDonald's
actions will undoubtedly be both time consuming and costly.
Ms. Kendall. Yes, Madame.
Ms. Bordallo. So can you please elaborate on this point?
For example, do you know what does it cost the government to
promulgate a critical habitat designation in terms of staff
time and Federal Register publication costs? If we are to
assume that the eight reviews recently announced by Director
Hall are the universe of decisions where Julie impacted the
science unfairly, what is the estimated cost that taxpayers
will spend now to take another look at them?
Ms. Kendall. I cannot give you a specific amount but----
Ms. Bordallo. Can you give me an estimated?
Ms. Kendall. Well if you look at the number of people
involved and the processes, it is actually quite involved. I am
sure it is considerable but I hedged my testimony because I do
not have a specific number.
Ms. Bordallo. You have no idea in what neighborhood it
would be? Thousands?
Ms. Kendall. I am afraid I do not. I am afraid I do not.
Ms. Bordallo. All right. Thank you. Thank you, Mr.
Chairman.
The Chairman. OK. One last question I have. Actually it is
a repeat question, Ms. Kendall, from before, and I would like
just to make sure the record is perfectly clear on the matter
we discussed earlier, and that is if you knew then what you
know or suspect now, the Interior Inspector General would have
sought to investigate to the extent it is empowered to, the
involvement of Vice President Cheney for meddling in the
Klamath affair?
Ms. Kendall. The impact on DOI employees, yes.
The Chairman. Thank you. The Chair will now recognize the
gentleman from Oregon, Mr. Walden.
Mr. Walden. Thank you, Mr. Chairman. I appreciate your
courtesy today and unanimous consent to allow us to participate
even though I am no longer a member of the Committee, although
I was for eight years. Ms. Kendall, I want to follow up on that
comment because I am disturbed by the letter to Senator Kerry
that came from Mr. Devaney then in light of your recent
comments here before the Committee, and I want to read from
that letter, and I assume you have seen it and know it. Were
you involved in the investigation that is encapsulated here in
the letter to Senator Kerry from Mr. Devaney?
Ms. Kendall. To the extent that I am involved in
investigations at a fairly high level, yes.
Mr. Walden. Then let me read from this because he says, and
I quite, ``As outlined in my letter to you dated August 28,
2003, the OIG focused its investigation on three areas: One,
what would be the normal regulatory process in a matter such as
this assuming that this as an Administrative Procedures Act
governed regulatory matter; two, what actually did happen in
the administrative process in the Klamath Basin matter; three,
how the Klamath Basin matter deviated from the norm if at all
with special attention being paid to A, the science, B, any
suppressed information, C, any evidence of political
interference'', and then they go on from there. On the face of
it, this language about any evidence of political interference
seems pretty broad.
Ms. Kendall. Yes.
Mr. Walden. And it is my understanding that this
investigation included talking to a known whistleblower. It is
referenced in the letter.
Ms. Kendall. Yes.
Mr. Walden. And personnel up and down the agency.
Ms. Kendall. Yes, it did.
Mr. Walden. And in the course of that investigation, was
there ever any limitation on the individual's ability to
comment about political interference? Was it constructed in a
way that you can only talk about it if it was Karl Rove?
Ms. Kendall. Well that was the focus of this investigation.
There was a very specific allegation about Mr. Rove's
attendance at a senior political appointee meeting held
offsite.
Mr. Walden. Right.
Ms. Kendall. And specific mention of the Klamath issue. The
allegation focused on----
Mr. Walden. I am aware of that.
Ms. Kendall. And that was really the focus of our
investigation.
Mr. Walden. But the investigation seemed to have drawn some
pretty substantive conclusions when you say, ``We determined
that the administrative process followed in this matter did not
deviate from the norm. Our review of the available documents
and rulings of U.S. District Court in Northern District of
California support the conclusion. The department had complied
with necessary information to support its various decisions
related to Klamath project.'' Even if Dick Cheney was involved,
your or Mr. Devaney's findings indicate nothing was awry.
Ms. Kendall. Well as I said----
Mr. Walden. Or that the process was followed correctly,
correct?
Ms. Kendall. We are not scientific experts.
Mr. Walden. Sure. I understand that.
Ms. Kendall. And we do not substitute our judgment. We
really follow the process.
Mr. Walden. Right.
Ms. Kendall. But as I said earlier, the influence--if you
will and taking The Washington Post article at face value--may
or may not have influenced the final decision but it does
reflect on the transparency of the process, and really beyond
that it would be mere speculation.
Mr. Walden. I would agree with that. I guess what troubles
me is to read, ``We determined the administrative process
followed in this manner did not deviate from the norm, and
further that none of the individuals we interviewed, including
the whistleblower, was able to provide any competent evidence
the department utilized suspect scientific data or suppressed
information was contained in economic and scientific reports
related to the Klamath project. To the contrary'', and it goes
on.
I read this to be a fairly comprehensive review of not just
the Wall Street Journal story but of the entire administrative
process because the conclusion that was drawn here about the
administrative process not deviating from the norm had to be
more than just did Karl Rove put a call in or did he do a slide
presentation that affected you, right?
Ms. Kendall. That is correct.
Mr. Walden. So I guess I am just a little perplexed by this
notion that maybe Dick Cheney in the background did something
that you would not have spotted if you talked to all these
people and they all agreed and there was no other evidence
shown of political involvement.
Ms. Kendall. Well I----
Mr. Walden. And deviation from the norm of the process.
That is what you were looking at, right?
Ms. Kendall. That is what we were looking at, yes.
Mr. Walden. All right. I guess that is where I get
frustrated is I get a document like this. It seems to say the
agency followed their procedures and their processes. I have
the report from the National Academies of Science that reviewed
not only the decisions but the science and the fish kill off
and independent peer review of those things, pretty
comprehensive, and then I hear allegations flying around that
are not substantiated yet, and I do not know about anybody else
in this committee, but there has been one or two times where a
report in a publication has not been exactly accurate as it
relates to something I have said or done. So anyway my time has
expired. Thank you.
The Chairman. The gentleman from California.
Mr. Doolittle. Thank you. Just looking at the same letter
dated August 6, 2003. No, that is not the date. Dated March 1,
2004, from the Inspector General, the Department of Interior,
to Senator Kerry, and it says in the letter, ``Finally, we
found no evidence of political influence affecting the
decisions pertaining to the water in the Klamath project. The
individuals at the working levels denied feeling pressured at
all.''
Now I realize you said your focus was on Karl Rove but
surely you would not suggest that when the individuals said
they felt no pressure at all that they would have answered
differently if they had been asked about pressure from the Vice
President as opposed to Karl Rove. That would not be your
position, would it?
Ms. Kendall. I am not sure----
Mr. Doolittle. In other words, this letter says, ``The
individuals at the working levels denied feeling pressure at
all.'' Now I take that to mean that they did not feel political
pressure from Karl Rove, Vice President Cheney, the President,
the Pope or anyone else.
Ms. Kendall. Based on our interviews of those individuals,
yes.
Mr. Doolittle. OK. So the fact that you were not focused
particularly on the involvement of Vice President Cheney would
not affect the truthfulness of this statement, would it? The
individuals basically did not feel at the working level any
pressure at all.
Ms. Kendall. That is correct.
Mr. Doolittle. Had they felt pressure from Vice President
Cheney or his aides or contacts, I would infer from this
statement that they would have felt pressures, would you not?
Ms. Kendall. Yes, sir.
Mr. Doolittle. OK. So I think that is clear. And then going
on, ``Higher level decisionmakers, both political and career,
also denied feeling any political pressure to render a decision
one way or another.'' Would that not be a reasonable conclusion
that like the individuals at the working level one could infer
that the Vice President was not putting pressure on them, even
though your focus was not on the role of the Vice President in
this matter?
Ms. Kendall. Without speculating one way or the other, sir,
we rely on----
Mr. Doolittle. But inference is a speculation but it is a
logical speculation. Are you telling me you cannot? I am sorry.
I am interrupting you. Go ahead and give your answer.
Ms. Kendall. Based on what people told us, that is a
correct conclusion.
Mr. Doolittle. OK. So all of this folderol about it is very
exciting, the Vice President is like a magician, it is really a
great endorsement of the influence of the man that he can do
these amazing things, and they cannot be detected by human
powers of perception somehow but you know you did interview the
people at the working level in the Interior and at the higher
level, and they all testified they did not feel any pressure,
and I am sure if the Vice President had been secretly doing
things that would have caused pressure, and they would have had
to have reported to you that they felt pressured but you wrote
in here or your Inspector General did that they felt no
pressure.
Ms. Kendall. That they told us they felt none, yes.
Mr. Doolittle. Right. So I just wanted to be clear about
that. That it is clear from your office, the head of that
office, that the people in Interior felt no pressure of a
political sort from Karl Rove or anybody else.
Mr. Miller. Would the gentleman yield?
Mr. Doolittle. Well I do not have very much time. How much
time do I have? I will yield. Why not?
Mr. Miller. Thank you. I believe that Ms. Kendall testified
earlier that as a matter of omission Ms. Wooldridge did not
inform Inspector General in that report that she had been
contacted I think repeatedly by the Vice President's office.
That was just not part of the record because it was never
volunteered, is that correct?
Ms. Kendall. If I may just make----
Mr. Miller. Clarify that. Yes.
Ms. Kendall.--a clarification.
Mr. Miller. Sure.
Ms. Kendall. Her interview might be read that way. I
personally cannot draw a conclusion based on that but her
interview and the report I think stands on its own.
Mr. Miller. There is nothing in the report that indicates
that she did say that? That she indicated that she had those
contacts?
Ms. Kendall. She did not at all indicate that she had any
contact.
Mr. Miller. All right. Thank you. I thank the gentleman for
yielding.
Mr. Doolittle. Yes. Thank you, Mr. Chairman.
The Chairman. Any other questions? Mr. Sali.
Mr. Sali. Yes, if I could, Mr. Chairman.
The Chairman. Sure.
Mr. Sali. Ms. Kendall, following up on this letter, it goes
on in that same paragraph that the good gentleman just referred
to where Mr. Devaney said, ``The consistent denial of political
influence by governmental officials was corroborated by the
view of the outside scientists and one former DOI official, all
of whom denied feeling any pressure, political or otherwise.''
And the final paragraph he says, ``No political pressure
was perceived by any of the key participants.'' Now you are
saying today that there was political pressure that was
perceived by someone but they did not disclose it during Mr.
Devaney's investigation?
Ms. Kendall. No, sir. I am saying that I would stand by
what we reported in 2004. I think based on the information
contained in the Washington Post article there is room to
perhaps interpret that information was not provided but without
going back to an individual and reinterviewing, I do not know
that we can draw a conclusion one way or the other.
Mr. Sali. You would agree that you made some pretty serious
charges against the Vice President today? That he did influence
the decisions around the Klamath?
Ms. Kendall. I do not believe I did that, sir.
Mr. Sali. I thought I understood you to answer the Chairman
that that was the case. Am I incorrect?
Ms. Kendall. No. My answer to the Chairman was that if
there were indications that there was that sort of political
influence on a DOI employee it would be appropriate for us to
look into that. In this case, we did not see that. There was no
evidence at the time we were investigating to follow any sort
of lead like that.
Mr. Sali. Do you plan any kind of investigation at this
point?
Ms. Kendall. Not at the moment, sir.
Mr. Sali. Has anyone complained to you that you should have
an investigation?
Ms. Kendall. We have not, to my knowledge, received such a
complaint.
Mr. Sali. So am I correct then that you do stand by the
investigation and the results that were reported by Mr. Devaney
on March 1, 2004?
Ms. Kendall. Based on the information we had at the time,
yes, sir.
Mr. Sali. Are you aware of any additional information today
that would change your mind about that?
Ms. Kendall. I am not, sir.
Mr. Sali. And so your conclusion today would be you have no
information that would change your mind about any of the
conclusions that are represented in this March 1, 2004, letter
from Mr. Devaney?
Ms. Kendall. With the exception of the allegations in the
Washington Post which I have no personal basis to know one way
or the other, that is correct.
Mr. Sali. But you do not believe those rise to a
significant level of concern that you are going to start an
investigation at this point, is that correct?
Ms. Kendall. Well to answer your question, at the moment,
no, and going back I believe I testified that in the end I am
not sure even if that influence were corroborated that the end
result would be any different other than as I said earlier sort
of the transparency of the process and what influence may have
been brought to bear.
Mr. Sali. Well once again I want to make real sure that we
have a clear record here. At this point, you have not heard
from anyone on this committee, anyone in your agency, anyone in
the public that has reported anything to you that would cause
you to begin an investigation regarding any kind of political
influence by Vice President Cheney, is that correct?
Ms. Kendall. As I sit here, yes, that is correct based on
what I have received or reviewed.
Mr. Sali. All right. Thank you, Mr. Chairman.
The Chairman. Any further members that wish to be
recognized? Yes? No? Any of our visitors? Any of our guests
wish to be recognized?
Mr. Walden. Thank you, Mr. Chairman, but I will yield.
The Chairman. All right. We thank you.
Ms. Kendall. Thank you.
The Chairman. Thank you for your patience and being with us
today. The Chairman will now call panel three composed of H.
Dale Hall, the Director, U.S. Fish and Wildlife Service, U.S.
Department of Interior who I understand is accompanied by Steve
Thompson, the Manager, California/Nevada Operations Office,
U.S. Fish and Wildlife Service and Mr. Robert W. Johnson, the
Commissioner of the Bureau of Reclamation, and William T.
Hogarth, the Assistant Administrator, National Oceanic and
Atmospheric Administration, the U.S. Department of Commerce
accompanied by Mr. Rod McInnis, the Acting Regional
Administrator, National Marine Fisheries Service Southwest
Region.
Gentlemen, we welcome you to the Committee today.
Appreciate your patience as well. We have your prepared
testimony. It will be made a part of the record as if actually
read, and Director Hall, do you want to proceed first. Welcome
once again to the Committee.
STATEMENT OF H. DALE HALL, DIRECTOR, U.S. FISH AND WILDLIFE
SERVICE [USFWS], U.S. DEPARTMENT OF THE INTERIOR; ACCOMPANIED
BY STEVE THOMPSON, MANAGER, CALIFORNIA/NEVADA OPERATIONS
OFFICE, U.S. FISH AND WILDLIFE SERVICE; ROBERT W. JOHNSON,
COMMISSIONER, BUREAU OF RECLAMATION
Mr. Hall. Thank you, Mr. Chairman and members of the
Committee. In the interest of time, I will have a brief oral
statement and thank you for entering the full written statement
into the record. As you have stated, Steve Thompson our
California/Nevada Operations Director is with us as well as Bob
Johnson, the Commissioner of the Bureau of Reclamation in case
questions come up in their areas of knowledge.
As you are aware, a recent Inspector General's
investigation has come forward regarding Julie MacDonald. We
have just heard a panel of witnesses discuss that so I will
discuss that briefly but I also want to discuss some of the
very positive things that have been happening in the Klamath
Basin, and you have also heard a great deal of information on
that today.
In the interest of time, I would simply like to highlight
two or three points. Number one is it is extremely important to
recognize the significance of those 26 different entities that
are meeting together in the Klamath Basin. Seldom in my career
have I seen that many disparate groups with disparate interests
sit down at the table and say, you know enough fighting is
enough.
We need to find some solutions, and I really compliment
everyone that has sat down at the table and stayed with it, and
I also want to take a little parochial pride and thank Steve
Thompson for the leadership that he has provided in that Basin
for us. But again, having worked in that Basin for six years
myself, I can tell you that is no small feat.
So the 26 people meeting together and the support and
funding that has come out there for significant projects from
the Sprague River, Williamson River, Chiloquin Dam and lots of
other places across that Basin, and it is a beautiful Basin, to
include our national wildlife refuges, especially lower Klamath
and Tulana Lake that do depend on the return flows from the
farming operations. So it is critical that we work in
partnerships there.
But this Administration I believe has tried to help us
achieve those goals, and just in 2007 $90 million has been
dedicated to the Klamath River Basin, and I believe it is a
Basin that well deserves it. We have also placed and my
understanding is for the first time FERC flow requirements in
the Klamath Basin, and I believe that is the first time for the
Klamath Basin, and that was done in collaboration and
partnership with a lot of people working in the Basin to come
up with something that could work.
I would like to quickly also touch on the Inspector
General's findings and things that we have done since then.
When I came on board in October of 2005, I spent the first
three or four months just kind of looking things over, as many
people would do, and I just felt some discomfort in some areas
of relationship between the Assistant Secretary's office and
the Director's office in the Fish and Wildlife Service in
general.
I felt actual concern in some areas where it dealt with
science, and so I had discussions with the Assistant
Secretary's office and really said it is inappropriate for
someone that is first of all not a scientist but second of all
in the Assistant Secretary's office to reach down and have
biological type discussions with GS-5, 7s, 9s or 11s, and so I
had a discussion with them, and that was ceased. And we then
started looking at the proper role to be played in evaluation
of packages as they came forward.
And I think it is important for us to remember I have 29
years working as a scientist in this agency but also have
always recognized that there is a policy role, and it is not as
if above the scientists nothing ever should happen. I have
recognized that in my career, and now I find myself half
scientist and half policy starter in trying to move those
things forward, but it is really important that we remember the
distinctness of those things, and that as a policy person we
should not be reaching down unless you have the credentials to
do so and really get into the science.
After the testimony that Deputy Secretary Lynn Scarlett did
here in May, Steve Thompson and I had already begun discussing
how we might look at actions that may be suspect, in California
in particular, but Secretary Scarlett asked me to do it service
wide, and so I did. I went to all of the regional directors,
and I asked them to go with their support staff and their field
staff, their field supervisors, and let me know any package,
any action--and that could be listing, it could be critical
habitat, it could be section 7 consultation for that matter--
that they felt that the outcome was changed as a result of
interference or involvement by Ms. MacDonald.
They went through that process, and they recommended 11
packages or that is what we call an action, 11 actions. One of
those was dismissed by the Regional Director, and that was the
Mexican garter snake, because he learned that Ms. MacDonald had
no role in that whatsoever. That that was decided by our own
career staff in Washington.
And then the other two were the marbled murrelet five-year
review and the bull trout, and the Regional Director there said
that that was really policy discussion, and the science was not
altered to the point that it changed any decision we were
doing. We have been moving forward with those, and we will
relook at those eight packages, and we will reanalyze them to
see if they need to be modified.
And the filter that was used for this other than saying
what was the decision and was the decision modified or changed
as a result of the involvement, and then the second filter is,
is it something that we really do think stepped up to the level
that we needed to relook at it and analyze it, and was it
overly involved? And so we put these filters on there to make
sure that everyone had A, the ability to put anything on the
list they wanted. I rejected nothing. And B, I even asked them
do you want to add more, and gave them an opportunity to do
that, and they declined.
So with that, we are moving forward, and I want you to know
that we take our scientific business very seriously at the
department, and the Fish and Wildlife Service has been my home
for 29 years, and I certainly intend to do everything I can to
make sure the scientific integrity is there. Thank you.
[The prepared statement of Mr. Hall follows:]
Statement of H. Dale Hall, Director, Fish and Wildlife Service,
U.S. Department of the Interior
Mr. Chairman and Members of the Committee, I am H. Dale Hall,
Director of the U.S. Fish and Wildlife Service (Service). I am here
today to discuss implementation of the Endangered Species Act (ESA),
including our activities in the Klamath River Basin. I appreciate the
opportunity to appear before you. Joining me today to answer any
questions that may relate to the Klamath River Basin and other issues
that fall within their responsibilities is Robert Johnson, Commissioner
of the U.S. Bureau of Reclamation (Reclamation), and Steve Thompson,
the Service's California/Nevada Operations Manager.
Background
As you are aware, a recent Inspector General's investigation and
media reports have raised questions regarding science and agency
decision-making under the ESA. Let me begin my testimony by stating,
from the outset, that I take these reports very seriously and am
committed to ensuring that the Service implements the ESA with the
utmost scientific integrity.
Science is the cornerstone of the Service's work; it is what guides
the agency's decisions. To the extent that these recent reports cast
doubt over the scientific integrity of the Service's ESA decisions, I
want to assure Congress and the public that I will act to correct any
decisions that did not use the best available science, as required by
law.
My testimony will also highlight the actions of this Administration
and our Klamath Basin partners in moving toward resolution of the long-
standing conflicts that have gripped this region. The Klamath has been
a hot spot in the ongoing and very real struggle resulting from
multiple demands for too little water. Today, I am pleased to report
that the Klamath Settlement Group has committed to settle these issues
and to find long-term solutions for managing the water needs of local
communities, irrigators, power generation, and wildlife, such as the
shortnose and Lost River suckers and the Coho salmon, which are on the
Federal list of Endangered and Threatened Species.
It is important to note that both science and policy have roles in
the implementation of the ESA. For example, the Service does not always
have full information about a species such that it can know with the
utmost reliability a species' risk of extinction, population levels,
rate of decline, or recovery needs. Under the ESA, the Service must use
the best available science, be explicit about the level of uncertainty
in that science, and leave it to decision makers to choose among the
options that achieve the objectives of the decision. In addition,
policy decisions in critical habitat designations are appropriate in
the section 4(b)(2) exclusion process of the ESA, pursuant to which the
Secretary must weigh the benefits of exclusion against the benefits of
inclusion. Thus, the assimilation, application, and interpretation of
science often represent the beginning point in making policy decisions
under the ESA. The peer review process, agency leadership, and the
public comment process help to ensure high quality decisions.
The Klamath River Basin
It is my understanding that you would like us to discuss our role
in the ongoing efforts to manage the resources of the Klamath River
Basin. The Klamath region straddles 16,400 square miles of south-
central Oregon, northern-central and north-west California, with the
Klamath River flowing 254 miles from its Oregon headwaters into the
Pacific Ocean. The people of this region are bound together by the
Klamath River's economic, ecologic and cultural importance to their
communities.
The Klamath River has been and continues to be important to the
economies and social fabric of that entire region. The Klamath Basin
was renowned for its salmon fisheries in the Pacific Northwest, as the
Klamath River was once the third largest producer of salmon in North
America. Reclamation's Klamath Project, as well as private systems,
supply irrigation water for a wide variety of agricultural crops
throughout the upper basin. The Service operates six national wildlife
refuges that provide important habitat for migrating birds.
Historically, the Yurok, Hoopa, Karuk, and Klamath Tribes have relied
on fish and other natural resources provided by the Basin.
Many notable accomplishments have been achieved in the Klamath
Basin since 2001. Structural improvements were completed to Klamath
project facilities that have helped screen the majority of both
juvenile and larval suckers from the A-Canal. The Link River Dam fish
ladder became operable in 2005, giving suckers and redband trout, an
Oregon State species of concern, access to historic habitat, including
spawning areas in Upper Klamath Lake and its tributaries.
Additional projects are currently underway to improve habitat for
other ESA-listed species and species of concern. For example,
Reclamation has developed the Water Bank Program, which provides
surface water storage, groundwater pumping, and land fallowing options.
Since its creation, the Program has developed water supplies for Coho
salmon flows. Also, The Nature Conservancy (TNC) and the Service have
provided $7.25 million and $2.47 million, respectively, in addition to
$1.62 million from Reclamation, to acquire Barnes Ranch for increased
water storage in Agency Lake and additional habitat for the Upper
Klamath National Wildlife Refuge. The total acreage of this acquisition
will be 9,650 acres.
Reclamation and the Bureau of Indian Affairs are also in the
process of removing Chiloquin Dam to improve fish passage on the
Sprague River in southern Oregon. Removal of the dam, scheduled for
completion in December 2008, will open up approximately 80 miles of
spawning habitat. In addition, TNC, in partnership with the National
Fish and Wildlife Foundation, the Service, and Reclamation, is
undertaking the Williamson River Delta Restoration project. This
project should be completed by winter of 2008 and will reconnect the
Tulana and Goose Bay Farms to Upper Klamath Lake, providing 5,860 acres
for increased water storage, enhanced fish and wildlife habitat, and
improved water quality in Upper Klamath Lake. Reclamation and the
Service each provided $2.5 million to the project.
Since 2005, a diverse group of Klamath River basin stakeholders,
including Indian tribes, farmers, conservation groups, and state and
federal agencies have committed to developing a detailed Klamath
Settlement Agreement by November 2007. For the past two years, this
group has persevered toward the development of a proposal to restore
the Klamath River fisheries, meet agricultural needs, protect water
quality and sustain the ecology and economies of the Klamath Basin. The
group is committed to prepare and present a balanced agreement.
In January 2007, the Department of the Interior and NOAA Fisheries
in the Department of Commerce announced the submission of their joint
modified fishway prescriptions for the relicensing of PacifiCorp's dams
and hydroelectric facilities on the Klamath River to the Federal Energy
Regulatory Commission (FERC). Like their March 2006 preliminary
prescriptions, the modified prescriptions include fish passage, both
upstream and downstream, for PacifiCorp's Iron Gate, Copco I and II and
J.C. Boyle dams, but provide a lower cost alternative for down stream
passage at Copco and a less prescriptive approach for tailrace barriers
and spillway modification. This is the first time any Administration
has required fish passage in prescriptions for FERC relicensing in
Klamath.
In Fiscal Year 2007, the Administration has allocated more than $90
million to support restoration, research and management in the Basin
and, from 2003 through 2006, the Department has obligated $215 million
for this effort. We are committed to continuing to work with everyone
in the Basin to ensure the long-term sustainability of the natural
resources and people of the Klamath region.
Decision-making Under the Endangered Species Act
The remainder of my testimony will focus on actions that have been
undertaken to ensure the integrity of the Service's scientific
decisions under the ESA. Since becoming Director, I have made
scientific integrity my top priority. Having been a scientist with the
Service for 29 years, I am acutely aware of the importance of science
in the Service's activities and decisions.
Shortly after I was confirmed as Director in October 2005, I began
to examine the process for reviewing ESA decisions in Washington. I
identified problems with the division of responsibilities for ESA
decisions between the Service's headquarters and the Office of the
Assistant Secretary for Fish and Wildlife and Parks. The apparent lack
of a clear delineation between the roles of the Service and of the
Office of the Assistant Secretary for Fish and Wildlife and Parks
concerned me. As a result, I began a series of discussions with the
Deputy Secretary to address and correct the situation. On February 3,
2006, with the concurrence of the Deputy Secretary, I issued a
memorandum detailing my views on how science should be used in making
recommendations and decisions, as well as the process by which science
would be reviewed in a policy and legal context. A copy of this
memorandum is enclosed with my written statement (Attachment 1).
In addition, I held several meetings with then-Acting Assistant
Secretary Matt Hogan and his staff to discuss how the division of
responsibilities for ESA reviews and decisions should be implemented. A
copy of an email on these responsibilities is also included with my
written testimony (Attachment 2).
In sum, we agreed that the formulation of science would be the
responsibility of the Service, while discussions between the Director's
office and Assistant Secretary's office would focus on policy decision-
making. With the Deputy Secretary's concurrence, we also agreed that
there would be no requests for information from the Assistant
Secretary's office to the Service's regional and field offices while
ESA packages were being formulated, a practice that had occurred in the
past. I instructed the Regions and Washington office staff that this
review process had been established to ensure the integrity and
credibility of ESA decisions and asked them to let me personally know
of instances where the process was not honored.
Secretary Dirk Kempthorne was confirmed by the Senate in May 2006,
and I have been impressed by his strong emphasis on ethical and
scientific integrity. As you know, on March 29, 2007, the Department's
Inspector General released a report on the Deputy Assistant Secretary's
involvement in ESA decisions. This Committee held a hearing on May 9,
2007, where Deputy Secretary Lynn Scarlett committed to conducting a
review of ESA decisions that may have been inappropriately influenced
by Ms. MacDonald.
On May 16, 2007, I visited the Service's California-Nevada
Operations Office (CNO) to meet with CNO Manager Steve Thompson and his
key field office leaders about the course of action for reevaluating
certain ESA decisions from 2002 to May 2007. This discussion was
informed by insightful input from the field, as the CNO Manager had
previously initiated a discussion with Regional leadership on this
topic.
Immediately following my discussions with CNO, I received a
memorandum dated May 22, 2007, from Deputy Secretary Lynn Scarlett
requesting that the Service review all work products that had been
produced by the Service and reviewed by the Deputy Assistant Secretary
in order to determine if any of this material required revisions based
upon her involvement. This memorandum is also being submitted with my
testimony (Attachment 3).
I then directed each of the Service's Regional Directors to engage
the appropriate field and regional staff in identifying what, if any,
ESA decisions may have been influenced by the Deputy Assistant
Secretary. My directive to the Regional Directors recognized that
policy formulations and interpretations were the proper
responsibilities of the Office of the Assistant Secretary. I instructed
the Regions to identify only those decisions that may have involved the
improper modification of science, which would have resulted in
undermining species conservation. The Service reviewed hundreds of
actions, and the Regional Directors each submitted a memorandum to me
outlining the results of their reviews. These memoranda are enclosed
with my testimony (Attachment 4). The Regions recommended that 11 ESA
actions warranted further review.
On July 11, 2007, prior to submitting the results of the review to
the Deputy Secretary, I held a conference call to have a final
discussion with all of the Service's Regional Directors to discuss each
ESA decision. As the Regions discussed their recommendations, it became
apparent that, in one case, the Mexican garter snake, the Southwest
Region had recommended a review of this package based on my directions;
however, it was determined instead that the Washington Office of
Endangered Species had questioned the decision. Therefore, the Mexican
garter snake was removed from the list of species to be re-evaluated.
I also want to point out that during our discussion, the Regional
Directors indicated that on a number of occasions they were successful
in explaining the Service's recommendations, with the result being that
the Deputy Assistant Secretary's comments were not included or did not
affect the Service's recommendations or decisions. By the end of the
call, the Regional Directors had identified 10 ESA decisions that
should be re-examined in order to ensure that the decisions comport
with the best available science and appropriate legal standards. The
next day, I submitted a memorandum to Deputy Secretary Scarlett
summarizing the results of our review and recommending that we re-
evaluate these decisions. That memorandum is also enclosed with my
written testimony (Attachment 5).
On July 19, 2007, Pacific Northwest Regional Director Ren
Lohoefener informed me that two decisions that were initially
recommended to be re-evaluated were based upon an interpretation of
policy, which is appropriately the responsibility of the Assistant
Secretary's office. These two decisions, the 5-year review for the
marbled murrelet and critical habitat designation for the bull trout,
were withdrawn from our list at his request. The July 19 memorandum
from Ren Lohoefener is being submitted with my written statement
(Attachment 6). Following this action, I sent a memorandum to the
Deputy Secretary amending the earlier list (Attachment 7).
In sum, the Service determined that the following eight ESA
decisions warrant re-evaluation: 1) Arroyo toad critical habitat, 2)
California red-legged frog critical habitat, 3) 12 species of picture
wing flies critical habitat, 4) White-tailed prairie dog 90-day
finding, 5) Canada lynx critical habitat, 6) Preble's meadow jumping
mouse 12-month finding/proposed delisting, 7) Preble's meadow jumping
mouse critical habitat, and 8) Southwestern willow flycatcher critical
habitat.
Reevaluation has already commenced for three decisions, the
Preble's meadow jumping mouse 12-month finding/proposed delisting; the
White-tailed prairie dog, where we are working on the 12-month finding;
and the 12 species of picture wing flies, where we are working on a
rule to re-propose critical habitat.
Conclusion
In conclusion, I would like to emphasize my personal commitment to
ensuring the scientific rigor, validity, and integrity of the Service's
decisions under the ESA. The reevaluation of the eight ESA decisions is
emblematic of this commitment. Neither I nor the Department will
tolerate instances in which scientific soundness and integrity have
been compromised, and I am confident that scientific excellence will
continue to guide our agency's work.
Mr. Chairman, I thank you for the opportunity to appear before you
today, and I would be pleased to respond to any questions that you or
other Members of the Committee might have.
[NOTE: Attachments have been retained in the Committee's official
files.]
______
Ms. Bordallo. [Presiding.] I thank you very much, Mr. Hall,
and now the Chair recognizes Mr. William T. Hogarth.
STATEMENT OF WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR,
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION [NOAA], U.S.
DEPARTMENT OF COMMERCE; ACCOMPANIED BY ROD McINNIS, ACTING
REGIONAL ADMINISTRATOR, NATIONAL MARINE FISHERIES SERVICE
SOUTHWEST REGION
Mr. Hogarth. Thank you, Madame Chair. I am Bill Hogarth,
the Assistant Administrator for National Marine Fisheries
Service. Thank you for the opportunity to discuss the
activities to implement the Endangered Species Act, including
those in the Klamath River Basins. I would like to discuss the
efforts NMFS has made to restore the important fishery
resources in these areas.
The conservation of fish resources throughout the west is
very difficult, and it is complicated by the competing uses for
a very limited water source. The Klamath Basin is one area
where the tough decisions related to water and fish have
received a lot of attention. The cutoff of water deliveries to
farmers in 2001 and the fish kill in 2002 have focused much
attention on the role played by the ESA in the Klamath Basin.
That has also stimulated renewed cooperative efforts to restore
fish populations of the Klamath by providing greater certainty
to the agricultural communities.
Federal agencies have taken significant actions over the
past years to improve the conditions. You have heard from my
partners in the Fish and Wildlife Service, and I would like to
discuss a little bit of what we have done. As you heard, four
fishways for four Klamath dams and possible dam removal have
been prescribed pursuant to the Federal power authorities.
Fishways and four dams on the Klamath is a major
accomplishment. This passage will provide access to hundreds of
miles of river that have been blocked for nearly a century. We
also participated in alternative settlement negotiations with
the PacifiCorp, a diverse group of interested partners. I have
met personally with many of these groups and sat down with them
and discussed the future, and as part of these discussions they
are seeking a comprehensive solution to water, fish, power
generation, agriculture and wildlife issues in the Klamath
Basin as a whole.
Second, NMFS has provided over $20 million to the State of
California and Indian tribes to restore salmon and their
habitat through the Klamath River Basin. And third, we have
just completed a Klamath River coho recovery plan that was
required by the Magnuson reauthorization. This coho plan relies
heavily on the State of California's coho recovery plan and
integrates the findings from many Klamath River watershed
groups and coalitions established throughout the Basin to
improve habitat conditions for fish and salmon.
We are now undertaking to actively develop a ESA recovery
plan for southern Oregon and northern California coho which
includes the Klamath River coho. NMFS and its fellow partners
have been working side-by-side with stakeholders in the Klamath
Basin to find achievable, long-term solutions to the ecological
problems we face. However, we cannot solve this by pitting one
side of stakeholders against another.
Now I would like to turn briefly to the California Central
Valley. NMFS has listed winter chinook as endangered and spring
chinook and steelhead as threatened. Working with multilateral
Federal and state agencies as well as stakeholders, we are
succeeding in bringing the winter chinook from the brink of
extinction in 1991 of 189 adults back to over 17,000 adults in
2006. Spring chinook have also increased substantially.
The Office of the Inspector General's report on the 2004
biological opinion on the joint Federal and state water
operations in Central Valley identified the need for
improvement in the process that NMFS uses to review and approve
section 7 consultations. Subsequently we had this biological
opinion peer reviewed, and independent scientific reviews
identified more scientific information that should be included
and considered in the future opinions.
In response to those recommendations, I withdrew and
consolidated the agency's section 7 delegations of authority.
On December 15, 2005, I issued a new delegation of authority
for the conduction of consultations under section 7 of the ESA
and section 7 improvement plan.
The delegation of authority created new requirements to
ensure section 7 policies and procedures were being followed.
Specifically each NMFS region and headquarters office of
protected resources must develop a quality assurance program
which was implemented in March of 2006. Second, all section 7
determinations must be reviewed and approved by the NOAA office
of general counsel unless they waive their right in writing.
Third, there will be a national section 7 coordinator and
regional section 7 coordinators to advise pertinent staff and
managers of section 7 issues and also provide training. Fourth,
there will be a tracking system of all section 7 consultations
in a national database. And fifth, we would maintain proper
records of all consultations.
This has all been accomplished, and we report regularly to
the IG, and it is also reported regularly to me. In addition,
to make sure this is all being carried out, I have contracted
with a private outside consultant to review the progress to
date to make sure that all these requirements are being
followed. This has been undertaken now, and they expect to get
a review from this by the end of August. Thank you for the
opportunity to be here today, and I will be happy to answer any
questions.
[The prepared statement of Mr. Hogarth follows:]
Statement of William T. Hogarth, U.S. Department of Commerce, National
Oceanic and Atmospheric Administration, National Marine Fisheries
Service
Mr. Chairman, I am Bill Hogarth, Assistant Administrator for the
National Marine Fisheries Service (NMFS).
Thank you for the opportunity to discuss our activities to
implement the Endangered Species Act (ESA), including those in the
Klamath River basin. The events in the Klamath basin have again been
the subject of recent news. I would like to take this opportunity to
discuss the efforts NMFS is undertaking to restore its important
fishery resources.
The Magnuson-Stevens Act and the Endangered Species Act--and the
state water laws of Oregon and California are the principal rules for
sustaining the resources and communities of the Klamath, and for
working out competing interests among the many people involved in this
complex system. The Federal Power Act, which regulates Klamath hydro-
electric power plants, also plays an important role.
A drought that began in the late 1990s has made it difficult for
the watershed to produce enough water and fish for everyone. Ocean
conditions that influence the survival of salmon at sea are cyclical,
and are a key variable affecting the numbers of adult salmon returning
to the Klamath to spawn.
These conditions led to the following major events:
The crisis of 2001, when irrigation for farming and
wildlife management was severely curtailed, drying up 170,000 acres of
farmland and two National Wildlife Refuges.
In 2002, a combination of low flows, high air and water
temperatures, a large salmon run that entered the River early in the
season, and disease that contributed to a record die-off of adult fish.
Three years of low returns of adult Klamath River Chinook
salmon (2004, 2005 and 2006).
Two parasites killing possibly half or more of the
juvenile salmon before they reach the ocean.
Federal agencies have taken significant action over the past
several years to improve conditions. My colleagues from the Interior
Department can speak to their actions. NMFS' efforts include:
1. New Fish Passage in the Klamath Basin. NMFS has prescribed,
pursuant to its Federal Power Act authorities, fishways for fish
passage at four dams on the Klamath River. The passage will provide
access to hundreds of miles of river that have been blocked for nearly
a century. NMFS is also participating in alternative settlement
negotiations with PacifiCorp and a diverse group of other interested
parties. As part of these discussions parties are seeking a
comprehensive solution to water, fish, power generation, agriculture,
and wildlife issues in the Klamath basin as a whole.
2. Pacific Coast Salmon Recovery Fund (PCSRF). NMFS has provided
over $20.0 M since 2000 to the State of California and Indian tribes to
restore salmon and their habitat throughout the Klamath River basin.
3. Klamath River Coho Recovery Plan. NMFS recently completed a
Klamath River Coho recovery plan that was required by the new Magnuson
Act reauthorization. The Coho Plan relies heavily on the State of
California's coho recovery plan and integrates the findings from many
Klamath River watershed groups and coalitions established throughout
the basin to improve habitat conditions for fish and coho salmon. NMFS
is also actively developing an ESA recovery plan for Southern Oregon/
Northern California coho (which includes Klamath River coho).
I will now focus more generally on our efforts to ensure that the
best available scientific information guides our decisions and
activities related to the ESA. The foundation of the ESA is its
reliance on the use of the best available scientific data in making
sound decisions regarding the protection of species. The ESA requires
federal agencies to use the best scientific data available (1) in
making decisions to list species as threatened or endangered, (2) in
designating critical habitat, and (3) during interagency consultations.
To ensure that the best scientific data are relied upon in making
decisions under the ESA, NMFS and the U.S. Fish and Wildlife Service
(the Services) issued a joint policy in 1994 guiding the use of best
available scientific and commercial data. That policy requires the
Services' biologists to evaluate all scientific and other information
available that will be used to support listing actions, develop or
implement recovery plans, prepare biological opinions, and other ESA
decisions. The Services also routinely seek peer review of their
listing decisions and draft recovery plans.
In addition, the Services published a joint Interagency
Consultation Handbook in 1998. The handbook instructs biologists that
are conducting an interagency consultation under Section 7 of the ESA
to use the best available scientific and commercial data to make their
findings. When conducting interagency consultations, the Services'
biologists are often faced with a lack of information or uncertainty in
the information that is available. In such circumstances, the Services
must apply their best professional judgment regarding the anticipated
effects of the action under consultation. In so doing, NMFS applies the
precautionary principle to address areas of uncertainty so that risks
are viewed cautiously in favor of the species and their designated
critical habitat but does so in a balanced way that attempts to
minimize disruptions to the action under review.
U.S. Department of Commerce Inspector General Reports on the
Interagency Consultation Process
In July 2005, the U.S. Department of Commerce Office of the
Inspector General (OIG) issued a report entitled, The NMFS Review
Process for the California Central Valley and State Water Projects'
Biological Opinion Deviated from the Region's Normal Practice (STL-
17242-5-0001/July 2005). The report concluded that NMFS deviated from
its procedures for conducting interagency consultation pursuant to the
ESA in developing its biological opinion on the Long-Term Central
Valley and State Water Project Operations Criteria and Plan (OCAP). To
address those deficiencies, the report contained several
recommendations, including a review of our policies and procedures for
conducting interagency Section 7 consultations, ensuring that those
policies and procedures are followed, and conducting peer review on the
OCAP biological opinion.
In response to these recommendations, I withdrew and consolidated
the agency's Section 7 delegations of authority. On December 15, 2005,
I issued a new Delegation of Authority for the conduct of consultations
under Section 7 of the ESA and a Section 7 Improvement Plan.
NMFS' Delegation of Authority to Conduct Section 7 Consultations
The Delegation of Authority created several new requirements to
ensure Section 7 policies and procedures are being followed.
Specifically, it required: (1) each NMFS Regional Office and the
Headquarters Office of Protected Resources (which coordinates our ESA
implementation efforts nationally) develop a quality assurance plan by
March 16, 2006, (2) all section 7 determinations be reviewed and
approved by the NOAA Office of General Counsel, unless NOAA General
Counsel waives its review in writing, (3) there be a National Section 7
coordinator and regional Section 7 coordinators to advise pertinent
staff and managers on Section 7 issues and provide training, (4)
tracking of all section 7 consultations in a national database; and,
(5) maintaining proper records for all consultations.
Section 7 Improvement Plan
Concurrent with the issuance of the 2005 Delegation of Authority,
NMFS issued a Section 7 Improvement Plan designed to improve the
quality of the agency's Section 7 consultations. That plan required the
development of up-to-date standard guidance for conducting section 7
consultations, enhanced training requirements for staff conducting
consultations, and conducting an annual review of consultation
documents prepared by the Regional Offices to ensure that consultation
documents comply with the requirements of the Delegation of Authority.
Peer Review of the OCAP Biological Opinion
Also in response to the OIG's recommendations, NMFS sought peer
review on its OCAP Biological Opinion. NMFS asked the CalFed Bay-Delta
Authority Science Program (CBDA) and the Center for Independent Experts
(CIE) each to conduct independent peer reviews to evaluate whether the
scientific information used in the biological opinion was the best
available. The peer review reports raised multiple and complex issues
that merited evaluation in the context of future improvements to NMFS'
Section 7 program and the OCAP biological opinion.
In April 2006, the Bureau of Reclamation (BOR) re-initiated Section
7 consultation on the 2004 OCAP biological opinion. The NMFS Southwest
Region and BOR are working together to develop a strategy to address
the scientific recommendations. Consultation with the BOR is ongoing.
In July 2007 the BOR indicated its intent to transmit a final
biological assessment to NMFS and FWS by the end of calendar year 2007.
A firm date for a new biological opinion has not been scheduled, but
NMFS expects to complete a new biological opinion during calendar year
2008.
Conclusion
NMFS and its federal partners have been working side by side with
the stakeholders in the Klamath basin to find achievable long-term
solutions to the ecological problems we face. However, we cannot get
there by pitting one set of stakeholders against another.
Furthermore, NMFS has taken and will continue to take significant
steps to restore important fishery resources in the Klamath basin and
in the Central Valley. We continue to do all that we can to ensure the
quality and integrity of our ESA programs. Our decisions are guided by
the best available science and in instances where the science is not
definitive and policy discretion is required, we rely on the experience
and judgment of our senior career professionals to inform the decision
making process. I believe Congress can and should be confident in the
NMFS' ability to manage the resources entrusted to it. Thank you for
this opportunity and I will be happy to take any of your questions.
______
The Chairman. [Presiding.] Thank you, gentlemen, for your
testimony. Let me begin with you, Director Hall, and thank you
for your testimony. It does provide the Committee assurances
about your commitment to sound science and ethics, and we
appreciate that as we do from each of the panelists. Much has
been made by you and the others of the new policy maintaining
integrity in our scientific decisionmaking process.
You put this in place in February 2006 to delineate a clear
separation of the responsibilities between the review of
documents to ensure conformance with established policy and the
gathering and analysis of science. According to your own memo,
this policy was developed after you examined how ESA packages
were reviewed in D.C., both in the Fish and Wildlife Service
and by Julie MacDonald, and you became troubled by the apparent
lack of clarity in the division of responsibilities. Is that
all accurate?
Mr. Hall. Yes, sir.
The Chairman. OK. Is it not true that you personally met
with Julie MacDonald and others on February 7, 2006, to discuss
the new policy and to make sure everybody was on the same page?
Mr. Hall. Yes, sir.
The Chairman. Then that being the case, why is it that
three of the eight decisions made by Julie MacDonald that the
Fish and Wildlife Service is now being forced to reassess
because questions had been raised about the integrity of the
science were made after, after the announcement of your new
policy and your personal meeting with her and others to clarify
the policy?
Mr. Hall. Thank you, Mr. Chairman. It is correct that three
of the packages that we are going to review are post the new
policy and how we will operate. The difference between those
and other packages is that the Director of the Fish and
Wildlife Service has delegated the authority to sign all
listing/delisting packages but the Assistant Secretary for
Fish, Wildlife and Parks signs the packages for critical
habitat determinations.
Those three were on there because our Regional Directors
believed that there was an inappropriate application of the
policy side. Not necessarily the science side or that the
science side was not strong enough to support the policy side,
and as I said in my opening comments, I rejected no package
that a Regional Director wanted to send forward. So I included
those.
We did have concerns about each of those packages. The
Assistant Secretary's office though made the final policy
decision on those three packages.
The Chairman. So it would appear then that Ms. MacDonald
disregarded the new policy?
Mr. Hall. The Assistant Secretary for Fish, Wildlife and
Parks actually signs the packages but I think it is fair to say
that she would have interpreted it that that was in the policy
side of section 4[b][2] or section 3[5][a] exclusions and felt
that it was not in the science side and made those
recommendations to the Assistant Secretary.
The Chairman. So you do not think she in any way thought
the new policies did not affect her?
Mr. Hall. I think she knew from the time that it happened
because I had further discussions along the way with her that
her comments, editing of science was not going to be accepted
but I think that in her mind she was interpreting that this was
a policy type decision that she could make on those three
packages because they were decisions that the law delegates or
assigns to the Secretary.
Section 4[b][2] is where economics or other factors may
outweigh the benefits of designating critical habitat, and
section 3[5][a] is where adequate conservation measures may
already be in place the Secretary can determine that critical
habitat is not necessary. Those packages and the reasons for
their reelevation was based on that.
The Chairman. So if this happens again in the future, how
is it going to be handled?
Mr. Hall. We will continue to work on the exact
interpretations of those policies and how you implement those
decisions, and we are working on a lot of different policy
approaches. Whether they come out in the form of proposed
regulations or whether they come out in the form of policy
proposals, we are working on all of those fronts.
The Chairman. OK. Have other staff been briefed on the
policy?
Mr. Hall. Other staff? I am not sure who you mean.
The Chairman. Other----
Mr. Hall. You mean other folks in the Assistant Secretary's
office?
The Chairman. Yes.
Mr. Hall. That may have come on board?
The Chairman. Right.
Mr. Hall. Yes. As a matter of fact, we have two brand new
Deputy Assistant Secretaries that they just showed up, and I
will sit down and visit with them on it the same way.
The Chairman. You have done that?
Mr. Hall. No. I will. They just showed up yesterday. I
think yesterday. So I will sit down with them as well.
The Chairman. OK.
Mr. Hall. Hopefully I do not anticipate any others like
that happening.
The Chairman. OK. Thank you. The gentleman from Utah, Mr.
Cannon.
Mr. Cannon. Thank you, Mr. Chairman. Mr. Hall or Mr.
Johnson, a letter from Julie MacDonald to the Inspector
General's office was referred to earlier in the hearing, and I
am told that Secretary Kempthorne has received a letter as well
that a response was sent back. Are you aware of this?
Mr. Johnson. No, sir.
Mr. Hall. We are not included in those kinds of decisions.
Her response goes to the department, and we are not privy to
those.
Mr. Cannon. Can you ask the Secretary to submit that to the
Committee?
Mr. Hall. I certainly can, sir.
Mr. Cannon. Thank you. I appreciate that. Now for Mr. Hall
or Mr. Hogarth, the title of today's hearing attempts to create
the impression that political influence in management decisions
is something new--hard be it by me to suggest that--and has
only occurred during the Bush Administration. In your
experience, are attempts to influence resource managers on
management decisions something new or different?
Mr. Hall. Go ahead and I will follow.
Mr. Hogarth. I think the influence on resource managers
comes from lots of different levels. As far as political
influence from the Administration, I have had zero since I have
been here. So I have not seen any. I have had discussions with
members of the Hill. I have had discussions with members of the
fishing industry. I have had discussions with most people who
are regulated by my agencies but as far as being pressure by
the Administration, I have had zero and the delegations have
been delegated to me from the Secretary.
Mr. Cannon. And Mr. Hall?
Mr. Hall. I think that that is what I was alluding to in my
earlier comments about there is a role for policy and there is
a role for science. I remember schedule C appointees being
actively involved with me when I was working the northern
spotted owl recovery plan, and then into the FEMAT process in
working Central Valley Project Improvement Act and the Bay
Delta, southern California for HCPs and other things. The
involvement is nothing new. Every Administration----
Mr. Cannon. And Congressmen certainly do it.
Mr. Hall. And Congressmen do it as well.
Mr. Cannon. And is there anything improper about that?
Mr. Hall. No, sir. As long as the line is not crossed,
there is nothing improper.
Mr. Cannon. Thank you. Let me go to this just because time
is limited. With the approximately 500 species listed under the
Clinton Administration, how many were the result--this is for
Dr. Hall--how many were the result of court ordered decisions,
citizen suits or other outside pressure?
Mr. Hall. Well I will start with 414 of them because that
was the Fund for Animals court settlement, and I happen to know
that number because 314 of them landed in my lap in Portland.
Mr. Cannon. So 414 out of 500 were lawsuit?
Mr. Hall. Four hundred and fourteen listing decisions were
given to us through the Fund for Animals court suit. Any other
court suits I really cannot recall. There were some plant
settlements. There were some other things but I cannot recall
all of them.
Mr. Cannon. When you say settlements, those were
settlements as a result of litigation?
Mr. Hall. Yes, sir.
Mr. Cannon. So like how many purely scientific decisions
were initiated in the Clinton Administration that were not
forced by lawsuits?
Mr. Hall. You know I am not sure I can remember when the
last time was we were able to actually have the Fish and
Wildlife Service decide on what we were going to list.
Mr. Cannon. Wait a minute. You are joking, right?
Mr. Hall. No, sir. I wish I were. When we got that Fund for
Animals court suit, it took us three years to go through those
414. Shortly after that, you may recall that we had a
moratorium on listing that was passed in Congress. That put us
further behind the eight ball, and then as we came back
Director, at the time, Jamie Clark, actually had to formulate a
tiered process to answer the courts.
Mr. Cannon. So the short of this is the Clinton
Administration was not some knight on a white horse with
shining armor that protected all these species. They reacted to
court orders?
Mr. Hall. Well you know I do not want to knight in shining
armor or villain either one.
Mr. Cannon. That is my characterization. You do not have
to----
Mr. Hall. We all----
Mr. Cannon. Pardon me. Let me just follow up with Dr.
Hogarth for a moment. Do you remember there being any political
influence brought to bear when the Federal government was close
to being shut down over the Steller sea lion protection
measures, and was the negotiation over these measures taken as
high as the White House, that is the Clinton White House, Chief
of Staff?
Mr. Hogarth. I was new in the game but I will tell you I
was sitting in the front office and there was a great deal of
pressure from all over on Steller sea lions because it was
shutting down one of the major fisheries in the country in
Alaska, and it was holding up the budget for the country but
no, that did not affect the decision that was made on the
listing of Stellers or the impact on fishermen, but it was a
major issue that created quite a bit of controversy.
Mr. Cannon. And lots of political influence?
Mr. Hogarth. A lot of political influence. Yes, sir.
Mr. Cannon. Mr. Chairman, I see that my time has expired,
and without any kind of political influence here, I am pleased
to yield back.
The Chairman. The gentleman from New Jersey, Mr. Holt.
Mr. Holt. I will be very brief because we have a vote
underway on the Floor. I understand, Mr. Hall, that when
various decisions were listed as needing review because Ms.
MacDonald may have had improper involvement in them, along the
lines of interfering with the science and this as a scientist
disturbs me a great deal--I spent a lot of time in this
Congress trying to stand up for integrity in science--there
were some items removed from the list including bull trout.
Now, is it not true that Ms. MacDonald actually reduced the
proposed critical habitat designation from about 300 miles to
about 50 miles or something of that sort?
Mr. Hall. Yes, sir, that is correct.
Mr. Holt. And you call that policy, not science?
Mr. Hall. Because it was 4[b][2] reductions, and that was
the Regional Director's conclusion.
Mr. Holt. So that was not inappropriate use of science. It
was just a policy decision?
Mr. Hall. The science question comes at the end of any
4[b][2] or 3[5][a] exclusion in saying, will the nondesignation
lead to the extinction of the species, and the finding by the
biologist was it would not lead to the extinction of the
species.
Mr. Holt. The mindset here, the degree of brainwashing or
whatever it is, is astounding to me. That is not science? That
is what biologists do. They determine habitat you know
numerically, and here you were already alerted to the fact that
there was perhaps perversion of the science, and you carry it
even farther. I am astounded. Thank you, Mr. Chairman.
Mr. Cannon. Would the gentleman yield?
Mr. Holt. I do not have any----
Mr. Cannon. Would the gentleman yield?
Mr. Holt. Yes.
Mr. Cannon. I am just wondering are you suggesting that
biological science is like mathematics? You can be absolute in
the numbers of the acres of habitat and the amount of water and
the diversity of species or is this something that is a little
softer than that in your mind?
Mr. Holt. Scientists live much more comfortably with
uncertainty than most people do but it does not mean just
because there is a range of uncertainty in scientific work it
does not mean all bets are off, and this strikes me as clearly
in the province of science. It may be that the scientific
experts are wrong. It may be that there is a little fuzziness
in their numbers. That is true. But this is clearly the
province of science. This is not a policy question.
Mr. Cannon. Would the gentleman yield again?
Mr. Holt. Yes.
Mr. Cannon. As I recall, Secretary Babbitt under the
Clinton Administration the scientists recommended 23 million
acres to preserve two birds in Texas, and that was massively
reduced by Secretary Babbitt. Is that an interference with
science in the gentleman's view of the world?
Mr. Holt. I am not familiar with that.
Mr. Cannon. I yield back to the gentleman.
The Chairman. The Chair will announce that we do have a
series of eight votes on the Floor of the House. The Chair will
recognize the gentlelady from Guam, Ms. Bordallo, for asking
questions of the panel, and then not excuse the panel as there
are other members that still have questions they would like to
ask when we come back from the roll call voting on the Floor.
The gentlelady from Guam is recognized, Ms. Bordallo.
Ms. Bordallo. Thank you. Thank you, Mr. Chairman. I have
some questions for Dr. Hogarth. Doctor, the National Marine
Fisheries Service has spent the past three years developing
regulations to protect the critically endangered wright whale
from ship strikes, one of the greatest known causes of death of
whales from human activities according to your agency, is that
correct?
Mr. Hogarth. Yes, Madame.
Ms. Bordallo. Yet despite extended public comment periods
on the rule, the rejection by NOAA Fisheries of emergency
measures that were recommended by both the Marine Mammal
Commission and a group of 16 scientific experts and your
assurance to the District Court of the District of Columbia
that the final rules would be released in June, the rule still
has not been released. So could you please comment on the
current status of this final rule? Why has the rule not yet
been release, and what is the cause for the delay?
Mr. Hogarth. In producing the rule we went through a very
major process of approximately five years and a lot of
consultations. The rule at the present time is in final review,
and it is at the Office of OMB, I think most people know, and
it is now being looked at as for its final approval. We do
expect to have a decision hopefully by the end of this week or
next week. We do feel like it is critical to protect wright
whales. It is one of the most endangered whales that we now
deal with, and so the agency is hopeful that this rule will be
released quickly. Quicker than it has been.
Ms. Bordallo. Well good. That is good news. Dr. Hogarth,
further complicating matters it appears that the objections to
the rule by the World Shipping Council have garnered the
attention of personnel at the White House and the staff of the
Council of Economic Advisors, a politically appointed council
charged with providing the President with economic advice. The
Council of Economic Advisors is reviewing and questioning the
scientific data and analysis used to devise and support the
rule.
Can you please comment on the role of the personnel at the
White House, and in particular the Council of Economic Advisors
in reviewing and analyzing rules of NOAA Fisheries and their
role in analyzing the scientific data that underlies your
agency's actions? Is this their expertise? And can you please
comment specifically with respect to the wright whale strike
rule that is pending as well as past practices? How often would
you say this situation we find ourselves in with respect to the
wright whale rule occur?
Mr. Hogarth. Well I think in this instance--I have been
here approximately six years--and this is the first time we
have had some disagreements with the Office of OMB, who reviews
all the rules within that process. We have been able to work
them out.
This rule has some significance both to wright whales and
potentially shipping lanes and economics. We feel like as
science has reviewed that. Economics has reviewed it, and it
has been elevated, and it is part of the process that we go
through is to elevate when you cannot reach agreement, and it
is in that stage of elevation, and we expect it to be resolved
this week or next week as I said.
Ms. Bordallo. In your opinion, Doctor, I just want to go
over that last question again. Do you know why the Council of
Economic Advisors is involved? I mean this does not seem to be
their expertise. So do you have any idea why they are involved
in this process?
Mr. Hogarth. I think, yes, my understanding is that there
is some question about the economics that the agency may have
used in our analysis, and so when the OMB looks at these rules
they look at the economics. Our opinion is when you look at an
Endangered Species Act, I think the Act is very clear that the
economics is not a factor. The science should be the overruling
factor.
I feel confident, very confident that the science backing
this rule will be held up but I think the process that we go
through for review, I do not disagree with the processing. It
is open to transparent debate on a rule of this significance,
and that is the way it is, and I am confident that our science
will stand up when it is over.
Ms. Bordallo. I see. How do you personally feel about this
Council of Economic Advisors being involved? I would like to
get an answer on that.
Mr. Hogarth. I think, as I said, I think the science should
be the overriding factor.
Ms. Bordallo. That is right.
Mr. Hogarth. And I am confident in the science but I think
there is some question that some of the reviewers further up
beyond me had with the science but I stand behind the science.
I will stay behind the science, and in talking to the others
who have been elevated, the Department of Commerce, NOAA
supports us, and I think when it comes to an issue that you
cannot resolve, it is up to the Office of Council of
Environmental Policy gets involved because it has been
elevated, and that is the way it is. I elevated the decision,
and I am waiting for a decision.
Ms. Bordallo. Yes. So Doctor, in your opinion are they
asking scientific questions or----
Mr. Hogarth. I think, yes, Madame. I think so.
Ms. Bordallo. Or are they just speaking on the economic
side of it, and who in the council has this expertise?
Mr. Hogarth. Well I am not aware of all the people that get
involved up above me, and you know when it gets to that level
because like I say it is part of the review process when it has
been elevated. We feel like we have had an opportunity. We feel
like we defended the science. I stand behind the science. I
stand behind the economics that we understand, but regardless
it should be based on the science because this is an Endangered
Species Act question, and wright whales are one of the most
endangered stocks we deal with, around 300 or less, and so we
have to make a tough decision.
Ms. Bordallo. Exactly, and I am glad to hear of your
decision on that that this should be a scientific process
rather than anything else. My last question, are you aware of
whether the Council of Economic Advisors staff or other
personnel at the White House have any expertise to analyze data
and science developed and compiled by NOAA Fisheries over many
years to support the rule, and what qualifies academic
economists and economic statisticians to question NOAA
Fisheries science? It is basically the same question but I just
want you to comment on that.
Mr. Hogarth. Well there is a science office in the White
House, and I would rather personally I think they do have some
expertise in some fiscal analysis, and they are looking at the
rigor of our fiscal analysis.
Ms. Bordallo. Doctor, those experts you say do they sit on
the Economic Council or are they just in the White House?
Mr. Hogarth. I do not know. That would be speculation on my
part, and if you want me to try and find an answer, I can. I
just know that there is a process, and we are working through
that process.
Ms. Bordallo. Could you for the Committee? I would like to
ask you if you could find out, yes, who is working at this
process and why and where their expertise lies. Thank you,
Doctor. Now since I am the remaining member here on the
Committee, and I am a territorial representative, so I do not
vote on the bills on the Floor. I just vote for amendments. So
I want you to know that is why I am here. I am not skipping
votes.
So the Committee will now recess for the votes, and the
Chairman has asked that you please stay because he will
continue the rest of the Committee meeting. Committee is
recessed.
[Whereupon, at 2:15 p.m. the Committee recessed, to
reconvene at 3:40 p.m., the same day.]
Ms. Bordallo. [Presiding.] The Committee on Natural
Resources now reconvenes the hearing, and the Chair recognizes
Mr. Lamborn, the gentleman from Colorado.
Mr. Lamborn. Thank you, Madame Chairwoman, and Mr. Hall, I
have a few questions for you. I represent a district where
there are a lot of people concerned about the Preble's meadow
jumping mouse listing or delisting or relisting in particular,
and I just want to make sure that the Fish and Wildlife Service
is aware of some of the studies at least that have taken place
concerning this animal.
For instance, are you aware of the Jones study in 1981 that
examined specimens from 123 collections totaling almost 10,000
specimens and concludes, ``There is no evidence of any
population of Zapus hudsonius,'' whatever it is, ``being
sufficiently isolated or distinct to warrant subspecific
status?'' Is that something that your service is aware of?
Mr. Hall. Well I would have to assume that our staff is
aware of it but we will make sure.
Mr. Lamborn. OK. Thank you.
Mr. Hall. Because our staff is working through that kind of
analysis right now.
Mr. Lamborn. OK. Thank you. And maybe the most recent and I
think academically superior study is that of Crandall and
Marshall completed last year commissioned by the State of
Wyoming, and they evaluated both King's and Ramey's work, two
people on opposite sides of this issue, and they are
internationally known population geneticists, Crandall and
Marshall, and they evaluated the two studies that have been
done, and they strongly support Ramey's findings, and they
contradict King's findings. Are you aware of the Crandall
study?
Mr. Hall. I am aware of it by name, and so I know our staff
has that one but I could not tell you. I have not read it
myself.
Mr. Lamborn. Because I ask some of these questions because
you have on your website the Fish and Wildlife Service Preble's
web page. All of the information it looks like that goes for
finding that as a separate subspecies but none of these works
that show it as not a subspecies which to me indicates the
possibility of bias.
Mr. Hall. Well that certainly is not our intent, and I will
get with our Regional Director in Denver, and we will make sure
that the website reflects whatever we have.
Mr. Lamborn. OK. But not just the website but the thinking
and the research because we are very concerned about that. Also
are you aware that the original scientist who found that it was
a separate subspecies, Crutch, back in 1953 he had used a total
of three specimens. Three skins or four skulls. And so it is
based on very scanty evidence, and then later recently he has
recanted that work, and he says it is not a separate
subspecies. Are you aware of that?
Mr. Hall. I have in discussions heard that said but the
question that we need to go through is if he truly believes
that, then we need to have it go through that same sort of peer
review type of process with the journals that accepted his
first documentation. I think in the scientific world until
something is overturned, which is what is being discussed right
now between for example the Ramey and King work and other
works, it really needs to go through that same process as when
it did in the beginning when it was put on and classified. This
is the taxonomic field, and we need taxonomists to help us
understand that.
Mr. Lamborn. And also are you aware that after the first
listing of the mouse there have apparently been a lot more
population found? When it was first listed, there were only 29
sites. Now there are over 132 sites where the mouse has been
found, a 400 percent increase. So the original conclusion by
the Fish and Wildlife Service that there was limited population
and the possibility of loss to me maybe it should be revised.
Are you aware of the recent indication that there are a lot
more of these mice than originally thought?
Mr. Hall. I am aware that there are more. I could not give
you the numbers. More populations have been evaluated. I cannot
tell you how many of those were assumed to be the Preble's
subspecies hudsonius or whether or not it was the other one
which is causing the conflict. So I am not exactly sure how
many of those populations fit in whatever category but I am
aware that more populations have been found.
Mr. Lamborn. And also it is now in the record Rob Roy
Ramey's testimony that he would have presented had he been
allowed to be a witness here today and also the letter from
Senator Wayne Allard of Colorado, those two documents now are
part of the record, and I hope that your people study those
documents, and Mr. Allard raises some very troubling questions
over the whole process that has taken place.
You know there was some talk earlier by other members of
this committee on people that in the Fish and Wildlife Service
in the past that recently resigned that maybe used bad science
or something like this. When I read these documents, I am
troubled by the bad science that looks like to me was behind
the Preble's meadow jumping mouse listing in the first place,
and then the refusal to delist when there has been a lot of
information showing that it is not endangered, that there is
more of these than we thought, and that it is not even a
subspecies in the first place.
And I just really hope that your agency looks at this. It
has tremendous economic impact on a high growth area like my
district in southern Colorado, and it even affects public
safety. And there was a highway project that--I will not go
into that. But there have been slowdowns on needed public
safety programs because of this creature that were slowed down
and fatal accidents resulted.
And so there is money involved. There is public safety
involved, and I just hope that your agency really does look at
these things that support the non listing of this animal. Do
you agree that these things should be looked at?
Mr. Hall. Absolutely. Congressman, what I have asked the
region to do is to look at everything. There has been so much
controversy, sides chosen, you know those that think it is
separate, those that think it is not, and so my request and my
instructions to the region are we want you to look at
everything. Whatever the truth is that we can ascertain, that
is what we want to find out.
Mr. Lamborn. OK. Well I appreciate that answer, and you
will look at the Rob Roy Ramey testimony?
Mr. Hall. We will look at everything that has been
submitted to us.
Mr. Lamborn. You will look at Senator Allard's letter dated
July 30, yesterday, to send it to Secretary Kempthorne?
Mr. Hall. Yes, sir. Everything that comes into us we go
ahead and put it in the record, and it is looked at.
Mr. Lamborn. OK.
Mr. Hall. Part of the process.
Mr. Lamborn. Thank you very much. Thank you, Madame
Chairwoman. I yield back my time.
Ms. Bordallo. I thank the gentleman from Colorado. I have a
question for Mr. Dale Hall. We understand that Julie MacDonald
may have contracted with Bob Ramey to do the work on the
Preble's jumping mouse. Did the department pay for Dr. Ramey's
work or did Ms. MacDonald pay Dr. Ramey with her own money?
Mr. Hall. Dr. Ramey was contracted by Deputy Assistant
Secretary MacDonald to work with her on scientific issues. I
cannot honestly tell you that I know whether or not that
funding to assist actually paid for his work or whether or not
she was relying on him for other advice but it is correct that
he was on the payroll of the Assistant Secretary's office.
Ms. Bordallo. So you are not so sure whether this was from
her own money or from the department's money?
Mr. Hall. No, Madame, I am not.
Ms. Bordallo. What about your assistants? Do they?
Mr. Hall. This would have been at the Washington level. The
way the Assistant Secretary's office is funded is through the
capital fund. Some funds go into the Assistant Secretary's
office and that is their operating budget, and they operate
however they feel appropriate.
Ms. Bordallo. All right. Thank you. The Chair now
recognizes Ms. Capps.
Ms. Capps. Thank you, Madame Chairwoman, and I know it has
been a very long day for many of you but I want to welcome this
panel, and I would like to have a conversation if I could with
Director Dale Hall. Based on the agreement of Fish and Wildlife
Service to revisit several decisions and the knowledge now or
it seems clear at least that that revisiting might lead a need
to investigate further, some questions for example about Fish
and Wildlife Service next steps in a review of the royal toad
and the red-legged frog critical habitat designations.
In particular my question is about wanting to know if the
Fish and Wildlife Service expects that there will be a new
rulemaking proceedings for these two species?
Mr. Hall. Thank you, Madame. We will reevaluate. I have
instructed each region that submitted their packages that they
think should be reevaluated I have instructed them to go ahead
and as soon as they can--we are at the end of one fiscal year
and so we will have to look at funding for the next--to start
looking at those from an evaluation standpoint. So I would
expect something, whatever their finding is, to come out in the
Federal Register at the end point.
Some of them are 90-day findings. Some of them are
revisiting critical habitats. It depends on the packages but
the royal toad and the red-legged frog I will ask Steve
Thompson to give you very specifics on that one.
Ms. Capps. Pardon? OK.
Mr. Steve Thompson. We will get those in line. We will be
working on them, and they will walk through the process again,
and we are concerned at this point that there may have been you
know inappropriate influence, scientific influence there. So we
are going to take a hard look at those, and we will run them
back through the process, and it may be as simple as an
appendage to the critical habitat.
Ms. Capps. The part I believe that I am interested in is
when you do this kind of evaluation, I wondered if you would be
attempting to limit any kind of rulemaking or decisionmaking to
specific provisions that are impacted by this particular
individual, Julie MacDonald's interference or would you issue a
new proposal for the entire critical habitat designation. The
latter is what I am trying to lead to because it would seem to
me--and I know you want to take this step-by-step--but this
hearing is about going down the next steps with you.
It would be difficult to me to try to truly pinpoint the
full extent of one person, Julie McDonald's influence on these
rulemakings. So you know I think if it is reopened as a
response to a particular set of actions that had further
reaching effect than was originally thought, that then the
entire habitat designation it would seem to me would warrant a
revisiting, and rulemaking that would be more expansive rather
than more limiting because of the impact on these critical
species. I would open it to anyone to respond.
Mr. Steve Thompson. No. I think we would agree with you,
and we are going to go back and take a hard look at those, and
some of them on our two packages we do not know yet until we
take a hard look but it may be a full blown review. It may be
less than that but we will take the appropriate look at it and
run all the way through it.
Ms. Capps. Well, Madame Chairwoman, I would hope that we
would be a part of that. That we would enter into that
conversation at the point of which some of those decisions are
being made because I think they are so critical. For example
and this by way of getting into a further discussions, Director
Hall, you have stated that Fish and Wildlife will not review
cases where Julie MacDonald's role was limited to changing
policy.
I have some concerns with this decision because to my
knowledge Julie MacDonald is not an economist, yet in many
cases she changed the way economic analysis was conducted for
evaluating critical habitat. In other words, the whole
underlying premise and foundation from which further
decisionmaking led was sort of altered in the beginning. To me
it is inappropriate whether or not to call that a policy. It
has such a wide ranging impact.
My question then: Why should not Fish and Wildlife revisit
all of these policies by Ms. MacDonald? Would that not give us
and give the public also confidence that the term policy is not
used to be hiding certain political decisions?
Mr. Hall. I think your question is a very legitimate one,
and we had a hard time with that ourselves in trying to decide
what we were going to go back and look at and earlier I had
testified about section 4[b][2], and in section 4 of the law,
subparagraph [b][2], it states that the Secretary can modify,
overrule if you will, or exclude critical habitat based on
economics or other factors, and that was why I said that really
is a legal policy interpretation. It is not really a scientific
question because the science is on the table.
We have said what we think the science should be for
critical habitat, and that clause allows the Secretary or
designee to look at that. When it comes though to questions of
where is the economic expertise or where is the legal
expertise, the Solicitors do the review from the legal
standpoint to see if it is appropriate but economics we do not
have the expertise to challenge the economics. That is why we
contract out all of our economic analyses for that.
So I am not sure that the Fish and Wildlife Service
biologist is capable of talking about economic tradeoffs as the
law calls for, and we do defer that to the Secretary's office
or the Assistant Secretary's office.
Ms. Capps. I know, Madame Chairwoman, I have overstated my
time but could I just follow up? I want to pinpoint back to my
question, and you were right to say this is the 4[d] rule. My
question then is this rule also being reviewed by the Service,
the rule itself or is the review limited to just the critical
habitat designation for the red-legged frog?
Mr. Hall. For the 4[b][2]?
Ms. Capps. Yes.
Mr. Hall. No, Madame. We are not reviewing that part.
Ms. Capps. The 4[d].
Mr. Hall. No, 4[b][2].
Ms. Capps. My question is about the special 4[d] rule.
Mr. Hall. The 4[d] rule?
Ms. Capps. Yes.
Mr. Hall. I am not aware of that part. Are you?
Mr. Steve Thompson. Are you talking about the California
red-legged frog?
Ms. Capps. Yes, and the royal toad.
Mr. Steve Thompson. If we look at that package and we see
that the science was different or influenced by the Deputy
Assistant Secretary, then we would propose to redo the whole
package.
Ms. Capps. Thank you, and I apologize for going over my
time.
Mr. Hall. And I apologize for misunderstanding which
section.
Ms. Capps. Well those little letters of the alphabet get
mixed up. Thank you very much.
Ms. Bordallo. Now that the apologies were all made, we will
continue. Thank the gentlelady from California. I have a
question, and I would like to welcome the Acting Ranking
Member, the honorable gentlelady from Washington, Mrs. McMorris
Rodgers. I have some questions here for Director Hall. It is my
understanding that you did not provide Regional Directors a
written directive explaining how they were to conduct a review
of decisions made by Julie MacDonald, is that correct?
Mr. Hall. Yes, Madame. We did it by conference call so that
I could get all of their input on what the right way to do it
was.
Ms. Bordallo. OK. Then you answered my next question then.
How are we to be assured that all the Regional Directors
received the same instructions?
Mr. Hall. They were all on the phone will me.
Ms. Bordallo. All on the phone.
Mr. Hall. And I gave them all the opportunity to ask
questions, and at the end I summarized OK, is this the way we
are going to go about it? Everyone is going to do it the same
way.
Ms. Bordallo. You had them all together on conference. OK.
In a memo dated May 22, 2007, Deputy Secretary Scarlett asked
you to review all work products that were produced by the
Service and reviewed by Mrs. MacDonald. Why did you choose to
review only those decisions where Mrs. MacDonald may have
influenced, the science, instead of leaving the determination
up to the regions of all the work products?
Mr. Hall. OK. Let me restate what I think you asked to make
sure that I can answer it the right way. You are asking me why
I left it to the regions to determine those packages that may
have been scientifically influenced?
Ms. Bordallo. That is correct.
Mr. Hall. OK.
Ms. Bordallo. That is correct.
Mr. Hall. I did it because they are the ones that put the
first packages together. They are the ones that submit them to
us, and they are the place where the science is formulated, and
so they would be the best ones talking with their staffs, their
leadership and with the field leadership to say, was this
package altered in the process to the point where the decision
was different? I felt like they were the right ones to tell me
that because they had the ownership of the packages to start
with.
Ms. Bordallo. Did they use different criteria?
Mr. Hall. As far as I know, everybody used the same
criteria. We were looking for decisions that were modified,
recognizing that the department at each level does have the
legitimate role of legal and policy interpretation but the
science should be left alone, and that is what I asked them to
do.
Ms. Bordallo. The other question I have is the Inspector
General found that many of the attorneys in regional offices of
the Interior Department refused to surname decision documents
during Mrs. MacDonald's tenure because they believed that the
documents were not legally sufficient. Have you asked the
regional solicitors to compile a list of decisions made during
Mrs. MacDonald's tenure that should be looked at again?
Mr. Hall. No, Madame. The Regional Solicitors work for the
Solicitor of the Department of the Interior, and I would not
have the authority nor the prerogative to ask them to do work
like that but no, I did not.
Ms. Bordallo. All right. I would like to ask the Ranking
Member if you have any questions. All right. Then I will
proceed on to the gentleman from Washington, Mr.----
Mr. Walden. Actually Oregon.
Ms. Bordallo. Of Oregon.
Mr. Walden. But I take no offense to that. Washington was
once part of Oregon.
Ms. Bordallo. Next door.
Mr. Walden. And we gave it up. It has never been the same
since. No. Madame Chair, I am going to waive, given the hour
and all. I appreciate your courtesy to allow me to ask
questions but I think we have heard great testimony from the
panel and their responses to the questions. So I would yield.
Ms. Bordallo. I thank the gentleman from Oregon. And now I
would like to thank the panel members for I know it has been a
long afternoon for all of you. I would like to thank Mr. Hall,
Mr. Thompson, Mr. Johnson, Dr. Hogarth and Mr. Rod McInnis for
your testimony. Thank you very much. And now the Chair would
like to call on panel four to please come up to the table.
Mr. William M. Lewis, Jr., the former Chairman of the
National Academies of Sciences Committee on Endangered and
Threatened Fishes in the Klamath River Basin, and Mr. Mike
Kelly, the former USFWS and NOAA Fisheries biologist. I wish to
thank all of the panelists this afternoon, particularly panel
three and four who had to wait so long. You know that we are
back and forth on the Floor voting. This is the busiest time of
the year for the U.S. Congress. So thank you very much for your
patience, and we will proceed. We will go ahead with our first,
Mr. William M. Lewis, Jr., and your testimony we would like to
keep it within the five-minute limit. The rest of your
testimony will be entered into the record.
STATEMENT OF WILLIAM M. LEWIS, JR., FORMER CHAIRMAN OF THE
NATIONAL ACADEMIES OF SCIENCES' COMMITTEE ON ENDANGERED AND
THREATENED FISHES IN THE KLAMATH RIVER BASIN
Mr. Lewis. Thank you. My name is William Lewis. I am a
faculty member at the University of Colorado in Boulder,
Colorado, and from the latter part of 2001 until most of 2003 I
was Chair of a Committee formed by the National Academy of
Sciences to investigate the degree of scientific support for
some decisions that had been made by the Federal government
relevant to endangered species in the Klamath River Basin. The
species in question are three. Two of them are endangered
suckers listed Federally, and the third is a threatened
population of coho salmon.
In the Basin the coho salmon action related to the
Endangered Species Act is overseen by the National Marine
Fisheries Service, and the suckers get the same protection
oversight from the U.S. Fish and Wildlife Service. Also in the
Klamath Basin is a large Federal water project called the
Klamath Project, and it manages irrigation waters of the upper
Klamath Basin for the benefit of about 220,000 acres of
irrigated land in the upper basin. This has been going on for
many decades.
In 2001, a crisis arose among the agencies because a
tightening in the use of irrigation water by the Klamath
Project through the USBR had reached a point at which it was
threatening to cause a shutoff and did cause a shutoff of
waters delivered to the irrigators. The USBR raised questions
about the validity of these additional strengthening measures
that were taken at the decision of the protection agencies, the
ESA agencies, and the Department of the Interior at that point
called in to the Academy to request a study from the outside to
provide additional opinions on the strength of evidence that
was behind these decisions, and that is how the committee was
formed.
The committee was composed of 12 individuals of diverse
backgrounds relevant to the subject at hand, and they were
given a charge, and the charge as usual for Academy committees
was restricted to matters of science and technology and was not
to involve policy administration. As you know, the Academy
performs this work routinely and was formed in 1863 by the U.S.
Congress in order to provide advice to the government but not
to be part of the government, and this was the work that was
done by my committee.
The committee studied the documents. It had numerous public
hearings and heard from constituents from government experts,
from consultants, from the Tribes, and local people, and
collected also the formal documents that had been prepared by
the Federal government and studied those. It issued an interim
report in 2002 and a final report in 2003.
The committee found the documents prepared by the Federal
agencies--that is all three Federal agencies--to be very solid
in the way they were prepared. Very credible, reflecting a lot
of study and thought and correct use of data with one
exception. The committee in examining the opinion that waters
of the Klamath Project should be managed differently so as to
be more conservative and provide more water for the fishes in
the Basin to be in contradiction to some of the evidence that
had been collected by the agencies over the years of the 1990s.
In addition, however, the committee found that the
recommendation of the USBR for future operations was flawed in
that it assumed that it would be possible to operate the
project in a way that was more liberal than had been in place
over the previous 10 years, and there was no scientific basis
for that request or that assertion. So the committee left I
suppose the evaluation with the concept that continuing
operating practices as prevailed in the 1990s could not be
successfully challenged based on what was in these documents.
Now in addition, the committee went on to carry out a
second part of its charge, and that was to evaluate the long-
term needs of these fishes, and the committee found that the
agencies had identified many problems other than the operations
of the Klamath Project and identified them but that the action
on these other issues had not been taken up vigorously because
the attention of the agencies had been wrapped up in
determinations about the operations of the Klamath Project.
The committee urged the Federal government to begin
vigorously pursuing some of these problems including massive
habitat degradation, blockage of fish migration pathways,
introduction of very large numbers of nonthreatened,
nonendangered fishes that might be competitive with the species
under protection, loss of woody vegetation and stream sides and
so on, and also urged that a much broader participation in the
efforts to cause recovery of these species be encouraged by the
Federal agencies through mobilization or encouragement of local
efforts to work toward solutions of these problems.
The final report was published in 2004 by the National
Academies and may have had an effect in at least broadening the
work that has gone on in the Klamath Basin, bringing more
attention to it and refocusing on a more realistic scope. That
is the end of my testimony. I would be glad to take questions.
Thank you.
[The prepared statement of Mr. Lewis follows:]
Statement of William Lewis, Professor of Biology, and Director, Center
for Limnology, Cooperative Institute for Research in Environmental
Sciences
My name is William Lewis. I am employed by the University of
Colorado at Boulder, where I am Professor of Biology and Director of
the Center for Limnology within the Cooperative Institute for Research
in Environmental Sciences. My field of specialization is inland waters,
including lakes, streams, rivers, and wetlands.
The National Research Council (NRC) is the operating arm of the
National Academy of Sciences (NAS) and the National Academy of
Engineering (NAE). The NRC forms and manages committees under policies
and guidelines set by NAS. Between the 1970s and the present, I have
been a member or chair of several NRC committees. Between 2002 and
2004, I was chair of the Committee on Endangered and Threatened Fishes
in the Klamath River Basin (``Klamath Committee''). The work of the
committee, as defined by its statement of task, was to review documents
prepared by agencies of the federal government regarding effects of the
U.S. Bureau of Reclamation's Klamath Project, which manages water for
irrigation, on three fish species in the Klamath River Basin that are
listed as threatened (coho salmon) or endangered (shortnose sucker,
Lost River sucker) under the Endangered Species Act. The committee's
study was sharply focused on the scientific basis of agency decisions
through which the Endangered Species Act was being implemented in the
Klamath Basin. The work of the committee is described in its final
report, which was published by NAS in 2004.
The Klamath Committee considered the possibility, as proposed by
the U.S. Fish and Wildlife Service and National Marine Fisheries
Service, that new restrictions on operations of the USBR's Klamath
Project could offer significant benefits both to the endangered suckers
and threatened coho salmon. After studying valuable information
collected by federal agencies and others, the committee concluded that
stricter operating requirements for the Klamath Project, as proposed by
the ESA implementation agencies (USFWS, NMFS), would be unlikely to
benefit the ESA-listed species. This conclusion was reached by the
committee on a scientific basis, without any consideration of economic
or political factors, as directed by the committee's scope of work. The
incidental effect of the conclusion, however, was to call into question
a tightening of water management for the Klamath Project that would
have caused significant and frequent shortfalls of water delivery to
agricultural water users.
In considering documents prepared by the federal agencies and
others, the committee also concluded that a proposal prepared by the
USBR, if approved, would have left operations of the Klamath Project
open to a wider range of water use than had been the case in the recent
historical past. The committee noted that intensifying water management
in this way could not be supported scientifically because more
intensive water management had not been studied environmentally.
Therefore, while the committee could not find reasons for new
restrictions on water management, it also could not find a scientific
basis for a greater latitude of water management than had been in place
for the preceding decade.
Because the biological opinions issued by the ESA implementation
agencies made reference to numerous factors other than water management
that might be affecting the listed species, the committee considered
all other possible causes for failure of the listed species to recover.
For each of the species, the committee found compelling arguments for
numerous kinds of remediation that could be effective in improving the
likelihood of recovery for the species. Options identified by the
committee include removal of small dams, restoration of cool water to
tributaries, experimental elimination of heavy stocking of non-
endangered species, restoration of streamside vegetation and woody
debris, and numerous others. Some of these measures have been
undertaken since the committee finished its work.
Circumstances leading to the creation of the Klamath Committee
followed a pattern that is typical for NRC committees formed under
direction of the NAS. Within the Klamath Basin, the U.S. Bureau of
Reclamation is responsible for operating the Klamath Project for the
benefit of private irrigators, and the U.S. Fish and Wildlife Service
has the responsibility of implementing the requirements of the ESA for
non-migratory fish species. Both of these agencies are administered by
the Department of the Interior. Over years of study and debate leading
to increasing degrees of restriction on the USBR's water management
practices for the benefit of endangered suckers, the two agencies had
reached a critical point at which the USBR strenuously objected on
technical and scientific grounds to further restrictions on its
management of the Klamath Project. Furthermore, the National Marine
Fisheries Service of the Commerce Department, which administers ESA
requirements for anadromous migratory fishes, including coho salmon,
was also calling for increased stringency of water management based on
welfare of coho, again in opposition to the USBR's analysis of the
probable benefits of increased restrictions. Thus, three agencies of
the federal government were involved in a scientific and technical
dispute with substantial potential consequences both for endangered
species and for agricultural water use and its economic derivatives.
Assistance in resolution of this problem by nonpolitical means is
exactly the type of task for which the National Academy of Sciences,
which is not a government agency, was created. The Academy has been a
consistent source of independent analysis and review on scientific and
technical matters of importance to the federal government for over a
century. In other words, the formation of an NRC committee to examine
the scientific and technical issues related to endangered fishes in the
Klamath Basin was well justified and timely, with no detectable
overtones of partisan political motivation.
Over the many decades that have elapsed since its formation by
Congressional Charter in 1863, the National Academy has developed
procedures insuring that the work of its committees will not be
influenced politically or by any other means not related to an
independent and factual examination of scientific and technical
information. The safeguards are numerous and have proven highly
effective. They include the following: 1) NAS does not accept a
committee charge that directs the committee to reach specific
conclusion or type of conclusion, 2) NAS populates its committees with
individuals who come from varied backgrounds, have varied expertise
relevant to the problem at hand, and have established national and
international reputations as experts in their fields, 3) while the
committee collects evidence and opinions in open meetings, it is
insulated from external pressure during its deliberations, 4) NRC
committees are directed to prepare a report containing conclusions that
can be approved by all committee members, and not just a majority of
members, 5) NRC committee reports are reviewed anonymously by as many
as 10-15 experts who give anonymous opinions that must be considered by
the committee and either rebutted effectively or reflected in revisions
of the report, 6) the report and revisions to NRC reports are overseen
in detail by two officials representing the interest of the NAS in the
integrity of the report, 7) final reports must be approved by the chair
of the NAS Report Review Committee, 8) members of NRC committees formed
by the NAS are not compensated, 9) committees are dissolved when their
task is completed; they do not have lasting influence except through
their final report, 10) committee members are rigorously screened for
conflict of interest and bias.
During 2002, while the committee was conducting its work, the
Klamath Basin was experiencing a severe drought, and in early fall
there was a mass mortality of adult salmon at the mouth of the Klamath
River. The federal agencies sponsoring the NRC Klamath study requested
specifically that this incident of mortality be addressed by the
committee as an addendum to its statement of task. Mass mortality of
salmon at the mouth of the Klamath attracted much attention to the work
of the Klamath Committee.
The mass mortality of 2002 involved the death of a conservatively
estimated 32,897 salmon. Three hundred forty-four (1%) were coho;
32,553 (99%) were fall-run Chinook salmon out of a run of approximately
170,000 fall-run Chinook. Coho salmon in the Klamath are listed under
the ESA, and the NMFS is charged to protect them from any unnatural
mortality.
The immediate cause of death of the salmon was massive infection by
bacterial and protozoan disease agents. These disease agents are common
and cause mortality of fish that are stressed or crowded.
The salmon that died in 2002 were gathered in a dense mass at the
mouth of the Klamath in preparation for group migration up the main
stem of the Klamath. This is an annual phenomenon and would not be
considered unusual. The salmon await favorable conditions for
migration. A typical trigger for upstream migration is a cool pulse in
flow, the natural cause of which would be precipitation in the lower
part of the basin. Because the weather was extraordinarily dry, it
appears that this pulse did not come, and the prolonged crowding of the
salmon led to the mass mortality.
An important question considered by the committee and many others
is whether management of water by the Klamath Project was responsible
for withholding the pulse of flow that would have allowed the salmon to
migrate. The NRC committee concluded that this is very unlikely. The
Klamath Project is located over 150 miles upstream from the mouth, and
water flowing through the Klamath Project accounts for only 10% of the
total flow at the mouth; large tributaries entering the river below the
Klamath Project contribute most of the flow at the mouth. Furthermore,
the Klamath Project releases water that is warm because it comes from
storage lakes rather than reaching the stream through groundwater or
surface runoff. The committee concluded that a relatively small amount
of warm water propagated over a distance of 150 miles would not have
made a critical difference to the salmon that were staging for
migration at the mouth of the river.
The committee also examined previous conditions and found that low
flows similar to those of 2002 had occurred in several years within the
period of record without any accompanying salmon mortality. The
committee therefore concluded that mortality was the result of an
unusual combination of conditions, probably including unusually low
flow plus the absence of a cool pulse of flow that even a brief
precipitation event might have provided.
In summary, formation of the Klamath Committee in 2002 followed a
series of events that is typical for formation of NRC committees by the
NAS: conflict over technical or scientific issues within agencies of
the federal government leading to a need for opinions from an
independent body, which often is the NAS. Once formed through the NRC
by NAS, committees are managed so that their findings cannot be
manipulated politically, nor would committee members continue to serve
in the face of manipulation.
______
Ms. Bordallo. I thank you, Mr. Lewis, and now the Chair
recognizes our next speaker, Mr. Mike Kelly.
STATEMENT OF MIKE KELLY, FORMER USFWS AND
NOAA FISHERIES BIOLOGIST
Mr. Kelly. My name is Mike Kelly. I am representing myself
at my own expense at this hearing. I was a fishery biologist of
the U.S. Fish and Wildlife Service from 1995 to 2000, and with
the NOAA Fisheries from 2000 to 2004. My duties included
analyzing Federal projects under section 7 of the Endangered
Species Act to ensure protection of ESA listed salmon species.
I would like to thank you for giving me this opportunity for
which I have been waiting for about five years. So thank you
for finally inviting me.
In this testimony I will describe my role as the technical
lead biologist during the development of the 2002 NOAA
Fisheries biological opinion which was found to violate the
Endangered Species Act. I will discuss problems that I see with
the National Research Council's interim report, and if I have
enough time I will discuss some possible ideas for helping
avoid future problems.
The courts found that the NMFS 2002 biological opinion for
the 10-year Klamath Project operations plans was illegal on
three separate points. In this part of my testimony I hope to
clearly demonstrate to the committee that NMFS' final decision
was no accident, and that someone at a higher level than the
regional NMFS office was responsible for forcing the illegal
action.
I will kind of start at the end by reading from the final
court decision a couple of quotes here. ``While the NMFS can
draw conclusions based on less than conclusive scientific
evidence, it cannot base its conclusions on no evidence. An
agency does not avoid the likelihood of jeopardy to a listed
species when it disregards the life cycle of the species in
crafting the measures designed to protect it nor can the agency
provide only partial protection for a species for several
generations without any analysis of how doing so will affect
the species. The biological opinion clearly presents specific
quantitative target flows that the NMFS concluded were
necessary to avoid jeopardy. The Federal defendants asked us to
disregard their quantitative conclusions in favor of their
assertions that the first eight years of the 10-year plan RPA,
reasonable and prudent alternative, will avoid jeopardy.''
``We conclude that the RPA is arbitrary and capricious
because it fails to analyze the effects of 8 of 10 years of
proposed action on the coho salmon, a species with a three-year
life cycle.'' These reasons are specifically the reasons that I
have brought up in my whistleblower disclosure.
In the winter of 2001, NMFS selected me to be the technical
lead fisheries biologist for the upcoming consultation on the
Klamath Project. The previous years' biological opinion found
jeopardy to coho salmon which of course resulted in a lot of
controversy. My immediate supervisor advised me early on that
she had been informed that Vice President Cheney had been
briefed on our consultation, but that is the only time that the
Vice President was mentioned to me during the process. I was
also aware that President Bush had declared that he would do
everything he could to get the water to the farms, and I was
keenly aware of all the controversy.
I realized the political pressure might be applied to my
superiors but I naively believed that I was shielded from such
pressure. I thought that my analysis would, as is always
required, be based on a logical analysis, essentially a more
complicated version of one plus one equals two but as it turned
out I was essentially asked to support a conclusion that made
as much sense as one plus one equals three.
I was told that my draft biological opinion, my first
draft, was reviewed by the Department of Justice and was deemed
indefensible. I am going to skip ahead a little bit. I am
running out of time but after we were told that the opinion was
not defensible without any further explanation Mr. Jim Lecky
came to our office to help us presumably put together a
defensible biological opinion, and then there was a decision to
allow proposed flows in April and May from the Iron Gate Dam
out of the project where Mr. Lecky wrote a letter saying that
there would be no adverse affect. It was not likely to
adversely affect the coho salmon for the same action that we
had already concluded would jeopardize the coho the previous
year, and that we had in our analysis presently said was
jeopardy which made no sense.
We had meetings to discuss this alternative which was not
acceptable to Reclamation. In that meeting they presented us
with a proposal that they would be responsible for 57 percent
of whatever we said was necessary to avoid jeopardy, and that
was never analyzed. That ended up being the reasonable and
prudent alternative, and that was never analyzed in the final
biological opinion.
I have much more, and I am glad that goes into the record
but I have to stop speaking now. I will entertain any
questions. Thank you.
[The prepared statement of Mr. Kelly follows:]
Statement of Mike Kelly, Former USFWS and
NOAA Fisheries Biologist
My name is Mike Kelly. I am representing myself at my own expense
in this hearing. I was a fishery biologist with the U.S. Fish and
Wildlife Service (USFWS) from 1995 to 2000 and with NOAA Fisheries
(NMFS) from 2000 to 2004. I am currently a private consultant
specializing in the monitoring of construction projects to ensure
permit compliance and avoidance of adverse impacts to aquatic
resources. While with NMFS I worked in the Protected Resources Division
as an Endangered Species Act (ESA) section 7 biologist. My duties
included analyzing Federal projects under section 7 of the ESA to
ensure protection of ESA-listed salmon species.
In this testimony, I will:
1) describe my role as the ``technical lead'' biologist during
development of the 2002 NMFS Biological Opinion (BiOp) for the Bureau
of Reclamation's 10-year Klamath Operations Plan, which was found to
violate the ESA;
2) discuss problems with the National Research Council's (NRC)
interim report, which reviewed the 2001NMFS and USFWS BiOps, and
demonstrate that NRC itself admitted in their final report that it did
not apply the standard that the law required;
3) discuss possible ways to avoid future abuse of ESA decision
making processes, and to strengthen the Essential Fish Habitat
provisions of the Magnuson-Stevens Fishery Management and Conservation
Act.
Development of the 2002 Biological Opinion for the 10-year Klamath
Project Operations plan
The U.S. District Court for the Northern District of California
(Case #C-02-2006) found the NMFS 2002 BiOp for the 10-year Klamath
Project Operations Plan to be illegal on three separate points. In this
part of my testimony I hope to clearly demonstrate to the Committee
that NMFS' final decision was no accident, and that someone at a higher
level than the regional NMFS office was responsible for forcing the
illegal action.
To make it more obvious to the Committee where this long story is
headed, I provide these excerpts from the final court decision, which
address one of the three illegal aspects of the BiOp:
(w)hile the [NMFS] can draw conclusions based on less than
conclusive scientific evidence, it cannot base its conclusions
on no evidence. An agency does not avoid the likelihood of
jeopardy to a listed species when it disregards the life cycle
of the species in crafting the measures designed to protect it.
Nor can the agency provide only partial protection for a
species for several generations without any analysis of how
doing so will affect the species.
Phase III clearly presents ``specific quantitative target
flows'' that the NMFS concluded were necessary to avoid
jeopardy. The federal defendants ask us to disregard their
quantitative conclusions in favor of their assertions that the
first eight years of the RPA will avoid jeopardy.
We conclude that the RPA is arbitrary and capricious because it
fails to analyze the effects of eight of ten years of the
proposed action on the SONCC coho, a species that has a three-
year life cycle.
In the winter of 2001 NMFS selected me to be the ``technical lead''
fisheries biologist for the upcoming (2002) ESA section 7 consultation
for Klamath Project Operations. The previous year's (2001) BiOp found
``jeopardy'' to the Southern Oregon/Northern California Coasts (SONCC)
coho salmon, which resulted in dramatically reduced irrigation
deliveries to farms in the Klamath Project, and much controversy. So we
began to prepare early for an anticipated similar proposal from
Reclamation.
My immediate supervisor advised me that she had been informed that
Vice President Cheney had been briefed on our consultation, apparently
with the intent of impressing upon me the importance of this
consultation. That is the only time that the Vice President was
mentioned to me during the consultation process. I was aware that
President Bush had declared that he would do everything he could to get
the water for the farms. And I was keenly aware of the controversy
surrounding the 2001 decision.
However, my duty--which was to determine whether the proposed
action would jeopardize the continued existence of SONCC coho salmon,
and what would be required to avoid jeopardy if that were the outcome
of the analysis--was all that should and did matter to me.
I realized that political pressure might be applied to my
superiors, but I naively believed that I was shielded from such
pressure. I thought that my analysis would, as is always required, be
based on a logical analysis of the best available science, and have a
logical outcome. I viewed it as a somewhat complicated case of 1+1=2.
Regardless of what I found in my analysis, it would have to make sense
and satisfy the legal requirements of the use of science under the ESA,
and certainly no political pressure could magically change that. I
never suspected that I would be asked to support the conclusion that
1+1=3, but I was.
I developed a draft BiOp, in which I used every approach I could
think of to analyze the effects to coho salmon, and in each case the
result was that the proposed action was inadequate to avoid jeopardy to
coho.
I then developed an alternative 10-year plan that I thought would
be adequate to avoid jeopardy, but still allow the Klamath Project to
operate, as is required of any ``Reasonable and Prudent Alternative.''
My draft BiOp was then reviewed by the Department of Justice,
according to my supervisor, and deemed ``indefensible.'' I was never
told what was indefensible about it, and I think Justice was mistaken
in their conclusion. My draft was certainly more defensible than the
final BiOp. I suspect that it was called indefensible simply because it
was not perceived as being consistent with the interim National
Research Council (NRC) report on the 2001 BiOp. (More about the NRC
report later.) Therefore, I would suggest that the GAO look into
Justice's role, if they did actually review my draft.
Jim Lecky, the Assistant Southwest Region Administrator at the
time, then came to our field office in Arcata, California to help us
finish a ``defensible'' BiOp. Mr. Lecky developed a different jeopardy
analysis, which I thought was much weaker than mine, but was consistent
with the NRC report. I continued to build a case for the alternative to
avoid jeopardy.
But before Mr. Lecky came to Arcata, and before my original draft
BiOp had been reviewed by Justice, he sent a letter to Reclamation
concluding that the Klamath Project ``was not likely to adversely
affect'' coho salmon if they operated the project as proposed while we
continued to develop the final BiOp. (Reclamation had delivered their
proposal to us much too late to finish our BiOp before the start of the
2002 irrigation season.)
This is when I began to worry. Stating that Reclamation's proposed
April and May flows would not be likely to adversely affect coho, for
the same action that we had already concluded would jeopardize SONCC
coho in 2001 and in our working draft, was a case of 1+1=3 logic. In
fact, my supervisor told me that Lecky had written the letter without
our input in order to ``distance'' us from his action. Not only was
this action bizarre, but it may have been a violation of section 7(d)
of the ESA, which prohibits the irretrievable commitment of resources
that may otherwise be required to protect species on completion of the
consultation.
The decision to allow the proposed April and May flows is the
federal action that made it possible for Secretaries Norton and
Venneman, and U.S. Senator Gordon Smith to pose for cameras while
opening the Klamath Headgates on April 1 to ceremoniously begin the
irrigation season. Obviously, there was a lot of incentive for the
decision in order to show support for the Administration's political
base.
As we continued to develop the BiOp, there was at least one
additional ``1+1=3 moment'' proposed by Lecky. I don't recall the exact
details, but it had to do with how we treated outmigrating juvenile
coho in our analysis. I warned him that I would refuse to continue
working on this assignment if we did as he advised. My supervisor
backed my position and Mr. Lecky gave in to our logic.
Eventually we finished our draft BiOp and delivered it to
Reclamation. The final alternative flow schedule was less cautious in
terms of protecting coho than my original draft, but I thought it still
marginally would avoid jeopardy. However, Reclamation promptly advised
us that our alternative was unacceptable to them, which is their
prerogative. Reclamation proposed that we meet to work out a solution.
We met for two days in April at Reclamation's Shasta Lake office.
When Mr. Lecky, my supervisor, and I arrived, Reclamation already had
their alternative plan posted on wall charts. They clearly had no
intention to negotiate. They were only willing to accept 57% of the
responsibility for any water that we decided was needed to avoid
jeopardy to coho, with additional water to come from unidentified
sources. This was based on the completely arbitrary calculation that
they only operated 57% of the irrigated land in the upper basin. This
proposal was quite ``innovative'' so we obviously needed some time to
consider its implications under the ESA. (Of course, NMFS ultimately
accepted this proposal, which was later ruled to be in violation of the
ESA due to its illegal partitioning of jeopardy-avoidance
responsibility, which is entirely the responsibility of the federal
action agency.)
We considered their proposal during the first day, but obviously
could not accept it for further analysis until we fully understood it.
On the morning of the second day, Mr. Lecky was on his cell phone when
my supervisor and I met him in the hotel lobby. After the call, Lecky
informed us that he had been told that we needed to stop
``stonewalling'' Reclamation's proposal. He seemed somewhat un-nerved
by the call. He did not say who he had spoken to or where the order to
stop stonewalling had originated.
During the second day, Reclamation's Regional Director, Kirk
Rodgers, and Mr. Lecky left the room for approximately 45 minutes. I
assume they made a call to someone up the chain of command. When they
returned, Mr. Rodgers asked Mr. Lecky to make the announcement that
NMFS would accept Reclamation's alternative.
On the way home I once again warned my supervisor that if we were
to accept Reclamation's alternative without a complete analysis, I
would be forced to refuse to continue working on the project.
A day or two later, my supervisor and I received a call from Lecky
stating that we would accept Reclamation's alternative with no further
analysis. So I requested to be dismissed from the project team because
I would not participate in an illegal action. I never took
insubordination lightly, and this was by far the most difficult moment
of my professional life. But I was being asked to provide scientific
support for a ``1+1=3'' conclusion, which, of course, would be a clear
violation of my professional ethics and official federal ethics rules,
as well as a possible violation of the law.
I also had hoped that my refusal to participate would apply some
``back pressure'' up the chain of command. I expected that it would be
untenable to develop a BiOp without a staff biologist. But my
insubordination was never entered into the record, so no one would have
known that I had protested if I hadn't filed for whistleblower
protection. Also, I was never reprimanded, and, in fact, I received an
award for my work on the BiOp. I think that they didn't reprimand me
and gave the award because NMFS knew that I was right all along.
It was obvious to me that someone up the chain of command was
applying a tremendous amount of pressure on Mr. Lecky. There's simply
no other explanation for anyone in NMFS developing or accepting such a
completely bogus and illegal BiOp.
NMFS sets a very high bar for our BiOps. Our BiOps go through a
very rigorous review process, and they are routinely returned to
biologists if there are any faults in the ``logic train,'' any
misinterpretations of the ESA or agency policy, or even minor problems
with formatting, etc. Again, I would like to stress that NMFS would
never accidentally produce such a faulty BiOp, especially when the lead
biologist clearly points out the faults during its development.
Additionally, a report by the Commerce Inspector General (IG) into Mr.
Lecky's alteration of biological conclusions of the Central Valley
Project/OCAP BiOp, found that Mr. Lecky had bypassed the normal checks
used in development of BiOps. These checks include a detailed review by
the regional section 7 coordinator. The section 7 coordinator revealed
that Mr. Lecky had also bypassed these checks during the Klamath
consultation, and that these two instances were the only two of which
she was aware during her tenure.
So my superiors finished the BiOp without me. I don't know how to
stress any further just how bad this BiOp was. Clearly it didn't matter
if 1+1=3. They had obviously been ordered to push the thing through
anyway.
I began to investigate whether and how I should file for
whistleblower protection and disclose what I had observed. I certainly
didn't want to cause unproductive trouble for my supervisor--I just
wanted to find a way to legally get NMFS to go back and re-do the
consultation. And I felt secure that I had made the correct ethical
decision in refusing to support the BiOp, so filing a whistleblower
disclosure was not ethically required and was probably premature.
Then a couple of weeks after issuance of the BiOp, we received a
letter from Kirk Rodgers at Reclamation stating that NMFS had
mischaracterized their 57% alternative and, therefore, Reclamation was
rejecting the BiOp. I wrongly assumed that this letter spelled the end
of the faulty BiOp, and that soon we would get another chance to get it
right. This certainly would have been the case in any other
consultation. So I gave up on the idea of filing a whistleblower
disclosure.
Then came the fish kill. The USFWS officially estimated that
approximately 64,000 adult salmon died in the lower Klamath River with
low river flows being a causative factor. The vast majority of the dead
fish were non-ESA listed Chinook salmon and steelhead trout, but at
least several dozen ESA-listed wild coho salmon were also killed.
Several dozen adult fish may seem small compared to the overall
magnitude of the kill, but it is a large number of a rare species.
While the death of several dozen fish in a single incident may not doom
the SONCC coho to extinction, it may have been a significant portion of
an early-returning sub-population from a particular tributary, which
could have significant impacts to the overall population in the long
term. Also, this was only the first year of the 10-year plan, so it
would be possible to repeat this incident several times in short order,
which could then have a cumulative effect that would be highly
significant.
Whether the fish kill was clearly a direct result of the BiOp
should not have mattered. A precautionary approach should have caused
NMFS to conclude that there was a significant likelihood that there had
been unauthorized ``lethal take'' of coho due to the project, and
should have caused us to call for a re-consultation. In my experience,
this would usually have been the case if even a single juvenile coho
had been unexpectedly killed under any other BiOp.
So I once again assumed that we would get another chance to do this
consultation correctly and provide adequate protection for the fish.
However, Lecky told the audience at a conference in October 2002 that
the BiOp was ``working'' and that NMFS expected to ``get a couple more
years'' out of it. That's when I decided that I had no choice but to
disclose what I had observed during the consultation.
While I was certain that the BiOp was illegal for several reasons,
I focused my disclosure on the lack of any analysis of the first eight
years of Reclamation's alternative. The body of the BiOp clearly
demonstrated the need for river flows that were protective of coho
salmon, yet the alternative did not provide the flows for the first
eight years of the 10-year plan.
I filed my whistleblower disclosure using the normal Office of
Special Council (OSC) process. The OSC punted my case to the courts,
stating they could not be ``arbiters of science.'' This conclusion was
mistaken, however, since NMFS was actually in violation of procedure as
we had argued to the OSC.
Ultimately, the courts found the BiOp to be ``arbitrary and
capricious'' for at least three separate reasons. These reasons
included the exact reason that I had originally given for refusing to
help finish the BiOp and that I had detailed in my whistleblower
disclosure. The other reasons, detailed in the U.S. District Court for
the Northern District of California (Case #C-02-2006) include the 57%
jeopardy avoidance responsibility discussed above, and the improper
reliance on actions that are not reasonably likely to occur to avoid
jeopardy.
If the Committee intends to investigate political manipulation of
the process used to develop the 2002 BiOp, I suggest asking the
following questions.
I would begin by questioning Jim Lecky about communications he had
with his superiors. Specifically, I would ask him who directed him, or
otherwise suggested to him, that he provide the ``not likely to
adversely affect'' letter regarding Reclamation's April and May 2002
flows. I would ask who called him to complain that we were
``stonewalling'' Reclamation's alternative at our April meeting. I
would ask who he and Kirk Rodgers spoke to, or what they discussed,
just before Mr. Lecky agreed to accept Reclamation's alternative. I
would ask whether Mr. Lecky informed anyone that his lead biologist had
refused to continue working on the BiOp, and, if so, what their
response was and why it wasn't entered into the record. And I would
then ask any superiors that he identifies who up the chain of command
they had communicated with on these matters.
Additionally, NMFS Director Bill Hogarth made the following
statement regarding development of the 2002 BiOp to the NR Committee on
March 13, 2002, in his testimony about the NRC report:
I can assure the Committee that we will work hard to get the
work completed as soon as possible, and I will be monitoring
the progress of our efforts very closely.
While Mr. Hogarth may have ``monitored the progress of our efforts
very closely,'' he never contacted me for my thoughts, even after I had
refused to continue my participation. Therefore, I would ask Mr.
Hogarth a similar set of questions.
Additionally, because there is strong evidence that ESA-listed
salmon were killed due to a blatantly illegal decision, there should be
an investigation by the appropriate authorities, including those
outside the agencies, such as the Public Integrity Section of the
Justice Department, to determine whether any civil or criminal
violations of any law may have occurred, for example, of the take
provisions of the ESA.
Typically, NMFS Law Enforcement would investigate illegal take of
listed species, so I've never been sure why they have not pursued this
case when presented with such compelling evidence of illegal action.
Certainly, the magnitude of the taking and strength of the evidence
(court rulings as well as scientific studies of the mechanism of the
taking) should make this an obvious case for enforcement. If this had
been caused by a private individual, rather than the agency charged
with protecting the fish, NMFS Law Enforcement would have pursued, and
likely won, this case. Agency personnel or others who did not have
reason to believe that the BiOp was engineered to specifications weaker
than the law requires should not be liable of course, but those who did
have reason to know should be held to account like any other person who
commits an un-permitted taking or other violation of law.
Problems with the National Research Council review of the 2001 BiOps
The Departments of Commerce and Interior requested that the NRC
independently review the scientific and technical validity of the
government's 2001 biological opinions for the Klamath Project. The
recent Washington Post story questions the Bush Administration's use of
the NRC to review the BiOps.
As described above, we were required by someone higher in the
Administration, not the law, to ensure that our jeopardy analysis was
consistent with the findings of the interim NRC report (Scientific
Evaluation of Biological Opinions on Endangered and Threatened Fishes
in the Klamath River Basin: Interim Report), which considerably
weakened our ability to use our ESA-required professional judgment
based on unpublished literature, non-peer reviewed literature, personal
communication with professionals in the field, our own experiences in
the field, and relevant information from studies conducted in other
locations.
Here is an excerpt from the February 2002 interim NRC report's
executive summary:
On the basis of its interim study, the committee concludes that
there is no substantial scientific foundation at this time for
changing the operation of the Klamath Project to maintain
higher water levels in Upper Klamath Lake for the endangered
sucker populations or higher minimum flows in the Klamath River
main stem for the threatened coho population.
This conclusion begs two questions. Firstly, how does the NRC
define ``substantial scientific foundation'' (that is, what burden of
proof) and, secondly, is their definition consistent with the required
standard of the ESA? The NRC did not choose to address these important
questions until their final report 18 months later.
A parallel report issued by the State of Oregon sheds some light on
these questions. The Independent Multidisciplinary Science Team Review
of the USFWS and NMFS 2001 Biological Opinions (IMST Report) reached
the opposite conclusion of the NRC Report.
The IMST Report concludes:
IMST agrees with NMFS that increased instream flows in the
Klamath River are defensible.
Additionally, the IMST report cites a report jointly developed by
the University of California Davis and Oregon State University that
also supports NMFS' conclusions, stating:
OSU-UC Davis report says increased flows in mainstem Klamath
River are justified based on presence of coho salmon.
So, why does the NRC conclusion differ from the IMST, OSU-UC Davis,
and the NMFS/USFWS conclusions? Because they used an inappropriate
burden of proof.
The IMST Report directly addresses this point:
Thc NRC (2002) focused its conclusions on relationships for
which there is clear evidence from measurements in Upper
Klamath Lake and did not give strong weight to evidence from
the larger scientific literature and broader scientific
concepts in its findings (D. Policansky, pers. comm.). However,
the IMST considers information on habitat use, studies of other
lake systems and fish Communities, as well as empirical
evidence from Upper Klamath Lake to be relevant scientific
information that resource management agencies are required to
use in making resource management decisions.
We recognize the increased certainty provided by basing
conclusions only on direct evidence for a specific location,
such as the National Research Council applied in its evaluation
of management actions for Upper Klamath Lake. At first glance,
the more limited and conservative perspective of the NRC
committee would seem to lower the chances of being wrong.
However, limiting the scientific basis for the determination of
appropriate management actions increases the potential for
placing a resource at risk simply because the available
observations are inadequate and the larger body of valid
scientific information from other systems has been ignored. If
management actions for all natural resources were limited only
to the specific system that was being managed, many lakes and
streams would have no management because empirical evidence for
those individual lakes or streams is nonexistent.
In its final report issued in the fall of 2004 (Endangered and
Threatened Fishes in the Klamath River Basin: Causes of Decline and
Strategies for Recovery), the NRC Committee finally acknowledges that
they used a different burden of proof than the standard required by the
ESA. From chapter 9 of the NRC final report:
The NRC committee's charge to assess ``whether the [agencies']
biological opinions are consistent with the available
scientific information requires the committee to adopt a burden
of proof that would apply in the scientific community rather
than the legal burden of proof that applies under the ESA.
Therefore, the NRC used an inappropriate standard for evaluating
the BiOps. They used an entirely different standard to evaluate the
BiOps than the standard that was required to develop the BiOps. This
fact renders the interim NRC Report irrelevant in judging the
appropriateness of the BiOps' conclusions; however, that is what the
Bush administration (predictably) used the report for.
Why did the NRC chose this inappropriate standard without
acknowledging it? Certainly, at least some of the NRC committee members
knew that the ESA requires a completely different burden of proof. And
they should have known that the Bush Administration would use their
interim conclusions in development of the 2002 BiOps for the Klamath
Project. If any members knew that the standard was inappropriate, did
they state it to the rest of the NRC committee members? If the stated
it, why did it not appear in the interim report?
I can only conclude that Bush Administration officials knew that
the NRC would use an academic burden of proof, rather than the ESA
standard, which would necessarily not support the BiOps' conclusions.
Simply stated, the Bush Administration asked the NRC the wrong
question. And in my opinion, officials in Interior and Commerce, as
well as certain members of the NRC Committee, would have known that it
was the wrong question to ask. I am convinced that the interim NRC
report was engineered to give the Bush administration its desired
answer. As one biologist familiar with the situation put it, ``The Bush
Administration played the NRC like a fiddle.''
I would recommend that this Committee question the Administration
officials involved in requesting the NRC review what they knew
regarding the burden of proof to be used by the NRC versus the legal
standard of the ESA. I would also ask the NRC committee members with
background in ESA law (e.g., Dr. J.B. Ruhl) why the NRC did not choose
the appropriate burden of proof. I would also question Dr. William
Lewis, the NRC committee chair, about his involvement in developing the
review in cooperation with administration officials.
I have also provided as an attachment an analysis of the NRC report
that was developed by the biologist who wrote the 2001 BiOp. I had
included this analysis in my original draft of the 2002 BiOp in order
to help demonstrate why the NRC report provided little relevant
information. Mr. Lecky removed this section from the draft and final
BiOps, and it was not entered into the administrative record until the
courts ordered it to be.
I would like to add that the NRC's final report includes many
excellent recommendations and related information that should be used
in efforts to restore the Klamath River.
IDEAS FOR AVOIDING FUTURE ABUSE IN ESA DECISION MAKING
I have had many discussions over the years with colleagues and
former colleagues about ways that ESA decision making, and specifically
the section 7 process, could be better implemented to avoid abuse by
administrators. These ideas have come from biologists with considerable
experience in ESA decision making and analyses. Two relatively simple
remedies are repeatedly cited.
Currently, only the final BiOps signed by an administrator are
routinely entered into the administrative record. This practice makes
it relatively easy for administrators to alter the conclusions of
biologists without leaving a trace. Allowing the lead biologist(s) to
co-sign the final BiOp as acknowledgement of support for the
conclusions/reasoning could greatly decrease the ability of
administrators to alter conclusions for non-scientific reasons.
Alternatively, a ``biologist's draft'' BiOp could be entered into the
record to allow comparisons with the final version, and administrators
would be required to explain any changes they made.
A second/additional remedy could be to have the lead agency
attorney for the consultation sign the final BiOp as an indication of
legal approval. In my experience, and in the experiences of my
colleagues, agency attorneys have always provided excellent guidance
during our development of BiOps. Guidance supplied to biologists and
administrators is protected by attorney/client privilege, so the
guidance does not appear in the record. I suspect that legal guidance
is often ignored by administrators when the guidance does not support
predetermined outcomes. I also suspect that this is the reason that
administrations lose so many ESA law suits.
STRENGTHENING OF THE ESSENTIAL FISH HABITAT PROVISIONS OF THE MAGNUSON-
STEVENS FISHERY MANAGEMENT AND CONSERVATION ACT
Whenever NMFS does an ESA section 7 consultation, it conducts a
concurrent Essential Fish Habitat (EFH) consultation for affected
federally-managed species. The result of these consultations is a set
of recommendations intended to protect the habitat of these species.
Some of these species are the same as the ESA-listed species, and
others are not ESA-listed. In the case of the Klamath Project, the
affected EFH species were the ESA-listed coho salmon and the non-listed
Chinook salmon.
During the 2002 Klamath Project consultation, when I asked about
doing the EFH consultation, I was told that we would not be doing one.
Our EFH coordinator in the Regional Office must have realized this and
produced a generic EFH consultation for us. I edited this generic
consultation to include specifics for Klamath coho salmon, which is my
specialty species, and developed at least a dozen recommendations to
protect coho habitat. I then informed my superiors that one of the
office biologists with Klamath Chinook expertise should review the EFH
document and make recommendations for that species.
I don't know whether another biologist analyzed the effects to
Chinook salmon, but the final EFH document did not include specific
recommendations meant to protect Chinook salmon habitat, and it did not
include any of the additional recommendations that I had developed for
coho. The single EFH recommendation was simply to implement the
alternative in the BiOp.
The EFH recommendations should have recognized that while Chinook
and coho have very similar habitat requirements, the Klamath fall
Chinook up-river migration run typically peaks a month or more earlier
than the coho migration. A legitimate EFH analysis would have
recognized this fact and would have recommended higher flows in
September. Higher flows in September could have averted the fish kill.
The reason that NMFS administrators are ``not willing to fall on
their swords for EFH'' (a quote to me from my supervisor) is that the
EFH provisions only require making recommendations to action agencies.
Agencies are then free to ignore these recommendations. As one
biologist I know was fond of saying, ``EFH is a gummy bear--no teeth,
no claws.''
I recommend that Magnuson-Stevens Fishery Management and
Conservation Act be strengthened to provide EFH requirements, not just
recommendations. Such a measure would make NMFS take EFH seriously, and
could help avert future fish kills and preserve commercial fisheries.
In closing, I would like to mention that much progress has recently
been made by parties in the upper and lower Klamath Basins toward
restoration of the Klamath River. While I think it is very important to
investigate what happened during development of the 2002 NMFS BiOp in
order to prevent future abuses of the ESA, I sincerely hope that any
investigation does not interfere with the encouraging progress in the
Klamath Basin.
______
8.1 National Academy of Sciences Report
Due to the controversy surrounding the basis for Klamath Project
water allocation decisions in 2001, the Department of the Interior
initiated a review of the situation by the National Academy of Science.
Accordingly, the National Research Council formed the Committee on
Endangered and Threatened Fishes in the Klamath River Basin
(Committee), made up of scientists and other experts, to develop both a
narrowly-focused interim report on the 2001 situation and a broader
final report about the biological requirements of listed fish in the
Klamath Basin.
The prepublication version of the Interim Report from the
Committee, entitled ``Scientific Evaluation of Biological Opinions on
Endangered and Threatened Fishes in the Klamath River Basin'' was
released to the public in February 2002 (Interim NRC Report, National
Academy Press 2002). Although the substance of the Interim NRC Report
is ``final,'' a final interim report will reportedly be available in
April 2002. The ``Statement of Task'' (Appendix to the Interim NRC
Report) included the following language regarding the Interim NRC
Report:
The interim report will focus on the February 2001 biological
assessments of the Bureau of Reclamation and the April 2001
biological opinions of the U.S. Fish and Wildlife Service and
National Marine Fisheries Service regarding the effects of
operations of the Bureau of Reclamation's Klamath Project on
listed species.
The committee will provide a preliminary assessment of the
scientific information used by the [USBR], [USFWS], and the
[NMFS], as cited in those documents, and will consider to what
degree the analysis of effects in the biological opinions of
the [USFWS] and [NMFS] is consistent with that scientific
information.
The committee will identify any relevant scientific information
it is aware of that has become available since the [FWS] and
[NMFS] prepared the biological opinions. The committee will
also consider any other relevant scientific information of
which it is aware.
NMFS is grateful to all members of the Committee for volunteering
to undertake an expedited review of 2001 proposed and implemented
Project operations, and looks forward to the final report that will
provide additional valuable information. By definition, the Committee's
interim report task was different from NMFS' Endangered Species Act
section 7 responsibilities (i.e., ESA section 7 consultation consistent
with the implementation regulations [50 CFR ' 402]). Although the
context is different, additional data, analyses, and current
conclusions always move the understanding of the Klamath River forward.
The conclusions of the Interim NRC Report with regard to coho
salmon seem to be: (1) there is a paucity of data about coho salmon in
the Klamath River Basin, but that population levels are unknown but
probably low; (2) operation of the Klamath Project consistent with
Reclamation's January 22, 2001, biological assessment may not be
scientifically supported; (3) substantial improvements in the amount of
coho salmon habitat in the mainstem Klamath River cannot currently be
attained in dry years, relative to river flows in the last decade; (4)
factors limiting Klamath River coho salmon production are not related
to conditions under the Project's control, at least during dry years;
(5) current hatchery practices are flawed; (6) there is no substantial
scientific foundation for changing the operation of the Project to
maintain higher Klamath River mainstem flows for the threatened coho
salmon (e.g., those flows recommended in the NMFS April 6, 2001,
biological opinion RPA); (7) there is no substantial scientific
evidence supporting changes in Project operations, nor the resulting
IGD flows, relative to the past 10 years; (8) avoiding coho salmon
stranding due to downward ramping rates at IGD seems reasonable and
prudent; and, (9) that the Committee's conclusions are subject to
modification in the future if scientific evidence becomes available to
show that modifications of flows would promote the welfare of Klamath
River coho salmon.
Regarding the availability of population data, the Interim NRC
Report acknowledged that ``[s]tocks of native coho salmon have declined
greatly in the Klamath River Basin over the past several decades'' and
that ``...standard methods for observing and counting spawning [coho
salmon] are not easily applied, and the size of the spawning population
is unknown.'' These conclusions are consistent with the NMFS 2001
biological opinion addressing Klamath Project operations, and this
biological opinion.
NMFS agrees that the amount of mainstem Klamath River coho salmon
spawning is probably not currently limiting coho salmon population
recovery. But the extent of mainstem spawning prior to pre-dam and
water development activities is unknown, as is the extent of mainstem
spawning in the future that may support recovery of listed coho salmon.
Preliminary coho salmon fry habitat modeling, conducted according
to commonly accepted methods, produced results suggesting that within
the available range of flow magnitudes, suitable fry habitat was
expected to increase with increasing flow. Depending on the method of
calculation, the estimated mainstem Klamath River coho salmon fry
habitat available under the NMFS 2001 biological opinion RPA is about
10 to 200% higher than that available under Reclamation's proposed
Project operations as described in their January 22, 2001, biological
assessment (see related information provided in the April 6, 2001, NMFS
biological opinion). This also appears to be the case for chinook
salmon fry. The Committee apparently has limited confidence in the
estimates of the amount of suitable habitat available under various
flow magnitudes, noting that such estimates in their final form require
``...extensive field measurements that are not yet available.'' The
draft Phase II flow study report (Hardy and Addley 2001) includes
extensive descriptions of the various methods (including field
measurements) used to develop the currently available estimates of fish
habitat in the Klamath River for the Committee's continued
consideration.
The Interim NRC Report also indicates that coho salmon smolts
require adequate habitat, but does not provide any relevant
conclusions. Available information, apparently without exception,
indicates that smolt survival is expected to increase with mainstem
flow magnitudes in the spring. As these fish have survived sometimes
difficult freshwater habitat conditions, and in consideration of the
populations apparent status (and associated uncertainty), it seems
prudent that management of the Klamath River mainstem should provide
for expected increases in smolt survival as these fish will contribute
to the adult population.
Although coho salmon have been found in the Klamath River when
water temperatures have been elevated (apparently in contrast to
investigations in the Mattole River), the NMFS shares the Committee's
deep concern about elevated water temperatures in the mainstem Klamath
River during the summer and that dramatic improvements cannot be made
simply by releasing more IGD water. However, modeling results and
temperature data indicate that modest temperature improvements (both
daily mean and maximum) are expected under some IGD release scenarios.
Further, decreases in mainstem temperatures that can probably be
realized are similar to the difference between some tributary
temperatures and those in the mainstem (e.g., see McIntosh and Li
1998), so that consistent with the expectation that tributary
confluence areas may provide survival benefits for coho salmon fry and
juveniles in the mainstem, decreases in mainstem temperatures may also
provide such benefits.
The Interim NRC Report apparently concludes that thermal refuge
areas associated with tributary confluences in the mainstem Klamath
River may be important for coho salmon, and that ``[a]ddition of
substantial amounts of warm water could be detrimental to coho salmon
by reducing the size of these thermal refuges.'' By extension, readers
of the Interim NRC Report must conclude that the Committee believes
alternative IGD flow regimes could also not be detrimental to coho
salmon (i.e., beneficial). For example, it is currently unknown whether
the amount of suitable habitat (in terms of temperature, water depth
and velocity, and cover components) and the associated ``carrying
capacity'' of individual thermal refuges would be increased or
decreased under specific IGD release regimes, relative to other
specific flow regimes. Indeed, the relationship between mainstem flows
and total thermal refuge carrying capacity may be different for
different thermal refuges and vary with water supply conditions and
meteorology. Finally, given that apparently little to no tributary
accretions contributed to mainstem flows between IGD and Seiad Valley
during August 2001 (Figure XX), another question to be considered must
be: How much water should be in the mainstem between IGD and Seiad
Valley (i.e., IGD releases), given the expected mainstem thermal regime
and physical habitat conditions?
Given the considerable uncertainty about how to optimize salmonid
carrying capacities in the mainstem Klamath River in the summer, NMFS
believes that experiments should be conducted with the goal of
providing scientific evidence and foundation for summer management of
the river.
NMFS agrees with the Interim NRC Report's conclusion that habitat
degradation in some tributaries is contributing to the decline of
Klamath River coho salmon, although NMFS is unaware of any scientific
evidence that this situation is limiting or that any other measures
taken to improve coho salmon survival or production would be
overwhelmed or negated by poor tributary conditions. The fact remains
that all individual coho salmon must use the mainstem as juveniles
transforming to smolts, and as adults. By extension, the survival of
all coho salmon that enter the mainstem will be affected by mainstem
habitat conditions. During ESA section 7 consultation, NMFS has no
choice but to consider information and develop life stage survival
expectations, regardless of the absence or paucity of ``scientific''
evidence or foundation.
NMFS also agrees with the Interim NRC Report's apparent conclusion
that recent Iron Gate Hatchery practices are probably not optimum.
Further, NMFS is aware that the CDFG has accomplished changes in some
practices that are expected to benefit the naturally-spawned coho
salmon population, and is currently evaluating other changes to their
program that could provide additional benefits. For example, hatchery
access for returning hatchery-produced adults has been improved for a
number of years, and the practice of returning ``excess'' hatchery
adults to the river has been curtailed and this should result in less
straying into tributaries. Also alternative hatchery production rearing
practices and release strategies for some species are currently being
considered, and this could lead to additional release timing
flexibility.
The Committee concluded that there is no substantial scientific
foundation for changing the operation of the Project to maintain higher
flows in the mainstem for coho salmon (presumably relative to the past
decade), but no specific definition of ``substantial scientific
foundation'' was offered. Although the Committee offered similar
conclusions about Reclamation's proposed Project operations as
described in their January 22, 2001, biological assessment, the
Committee apparently based this solely on the possibility that lower
IGD flows (e.g., lower than 398 CFS) than have been observed before
could result. The Committee seems to simply be saying that, if certain
low magnitudes of flow have occurred before they are acceptable, if
they have not occurred before, there is no substantial scientific
foundation and such flows are not acceptable. NMFS observes that this
does not seem to be a responsible way to view Klamath River management
in light of the complex problems at hand, and not consistent with ESA
evaluation processes. Regardless of the definitions and standards used
by the Committee, and in which particular instances they should apply,
readers of the Interim NRC Report reader must also conclude that
Project operations prior to 1996, and the resulting IGD flows, do not
have a substantial scientific foundation. Finally, NMFS observes that
it is not likely (i.e., very low probability) that IGD flows that
consist of water that others cannot use or store (e.g., IGD flows in
the early 1990s) are flows that provide appropriate survival levels for
literally all coho salmon that must occupy and depend upon the river.
NMFS agrees with the Interim NRC Report conclusion that avoiding
coho salmon stranding due to excessively rapid downward ramping of IGD
flows seems reasonable and prudent. In the April 6, 2001, biological
opinion NMFS noted that 7 coho fry were stranded during IGD flow
changes in April 1998, and included a recommendation of alternative
ramping rates in their RPA. This is consistent with NMFS' belief that
steps, both long- and short-term, must be taken to increase the
expected survival of this coho salmon life stage. Further, such steps
are appropriate even prior to developing a substantial scientific
foundation for individual measures, and with the knowledge that some of
these measures (including less dramatic ramping ramps) require that
more water volume be allocated to IGD releases during portions of the
year.
As with any conclusions drawn from the consideration of flow
management and the resultant affects to Klamath River salmon
populations, NMFS is pleased to know that the Committee may modify the
conclusions described in the Interim NRC Report if ``...scientific
evidence becomes available to show that modifications of flows would
promote the welfare of Klamath River coho salmon.'' Although the
Committee does not offer any prediction about when such evidence may
become available in the future, NMFS observes that scientific evidence
that is robust enough to provide absolute confidence that any Project
operational regime is consistent with the short- and long-term survival
and recovery of Klamath River coho salmon may not be available within
the next decade. This is particularly true if costly and time-consuming
investigations to develop this evidence (e.g., statistically valid
survival estimates, or ``cause and effect'' determinations) are not
initiated immediately. Although the recommendation to manage Klamath
Project operations with regard to mainstem flow as close as possible to
the 1990 to 2000 period is not explicitly offered in the Interim NRC
Report, it is a common perception that this is the Committee's
recommendation (e.g., see Reclamation's February 27, 2002, biological
assessment addressing Klamath Project operations) in lieu of
additional, high quality and site-specific scientific evidence that may
or may not be developed in the future.
In summary, while NMFS may agree with the Committee's conclusion
that there is no substantial scientific foundation for changing
mainstem Klamath River flow management, NMFS cannot agree with the
perceived Committee recommendation that absent conclusive scientific
evidence the Project should be managed as it was in the 1990 to 2000
period. Instead, NMFS must also determine and consider expectations
about the resulting effects to Klamath River coho salmon populations
based on the best available information. NMFS cannot ignore selected
information simply because it does not meet various standards applied
by various interests. Finally, NMFS must consider these expectations in
the context of tremendous uncertainty as to the status of the species,
and after explicitly determining what other activities that adversely
affect the fish (e.g., activities not subject to ESA section 7
consultation) are reasonably likely to occur. This includes the
cumulative effect of substantial water management activities outside of
the Project boundaries.
______
From the 30 July 2003 Issue of The Wall Street Journal
Oregon Water Saga Illuminates Rove's Methods With Agencies
TOM HAMBURGER
Staff Reporter of THE WALL STREET JOURNAL
July 30, 2003
WASHINGTON--In a darkened conference room, White House political
strategist Karl Rove was making an unusual address to 50 top managers
at the U.S. Interior Department. Flashing color slides, he spoke of
poll results, critical constituencies--and water levels in the Klamath
River basin.
At the time of the meeting, in January 2002, Mr. Rove had just
returned from accompanying President Bush on a trip to Oregon, where
they visited with a Republican senator facing re-election. Republican
leaders there wanted to support their agricultural base by diverting
water from the river basin to nearby farms, and Mr. Rove signaled that
the administration did, too.
Three months later, Interior Secretary Gale Norton stood with Sen.
Gordon Smith in Klamath Falls and opened the irrigation-system head
gates that increased the water supply to 220,000 acres of farmland--a
policy shift that continues to stir bitter criticism from
environmentalists and Indian tribes.
Though Mr. Rove's clout within the administration often is
celebrated, this episode offers a rare window into how he works behind
the scenes to get things done. One of them is with periodic visits to
cabinet departments. Over the past two years Mr. Rove or his top aide,
Kenneth Mehlman--now manager of Mr. Bush's re-election campaign--have
visited nearly every agency to outline White House campaign priorities,
review polling data and, on occasion, call attention to tight House,
Senate and gubernatorial races that could be affected by regulatory
action.
Every administration has used cabinet resources to promote its
election interests. But some presidential scholars and former federal
and White House officials say the systematic presentation of polling
data and campaign strategy goes beyond what Mr. Rove's predecessors
have done.
``We met together and talked a lot about issues of the day, but
never in relation to polling results, specific campaigns or the
president's popularity,'' says Lisa Guide, a political appointee at
Interior during the Clinton administration. Frank Donatelli, political
director in the Reagan White House, says ``we were circumspect about
discussing specific administration rulings that had yet to be made.''
Mr. Rove declined to comment. White House spokeswoman Ashley Snee
says the agency visits simply were designed to keep political
appointees apprised of the president's accomplishments and priorities.
Klamath River water levels were an issue at least as far back as the
2000 presidential campaign. During the unusually dry summer of 2001,
angry farmers stormed the head gates to forcibly release water, but the
Bush administration generally resisted their demands. In 2002, the
issue continued to loom large as Mr. Smith faced a potentially
difficult re-election challenge.
On Jan. 5, Mr. Rove accompanied the president to an appearance in
Portland with Mr. Smith. The president signaled his desire to
accommodate agricultural interests, saying ``We'll do everything we can
to make sure water is available for those who farm.''
The next day, Mr. Rove made sure that commitment didn't fall
through the cracks. He visited the 50 Interior managers attending a
department retreat at a Fish and Wildlife Service conference center in
Shepherdstown, W.Va. In a PowerPoint presentation Mr. Rove also uses
when soliciting Republican donors, he brought up the Klamath and made
clear that the administration was siding with agricultural interests.
His remarks weren't entirely welcome--especially by officials
grappling with the competing arguments made by environmentalists, who
wanted river levels high to protect endangered salmon, and Indian
tribes, who depend on the salmon for their livelihoods. Neil McCaleb,
then an assistant Interior secretary, recalls the ``chilling effect''
of Mr. Rove's remarks. Wayne Smith, then with the department's Bureau
of Indian Affairs, says Mr. Rove reminded the managers of the need to
``support our base.'' Both men since have left the department.
An Interior spokesman, Mark Pfeifle, says Mr. Rove spoke in general
terms about the Klamath conflict in the course of a broader discussion.
Without directing a policy outcome, Mr. Pfeifle says, Mr. Rove simply
``indicated the need to help the basin's farmers.'' In the end, that is
what happened when Interior reversed its previous stance and released
more water. Mr. Rove's intervention wasn't the only reason. Mr. McCaleb
himself says the biggest factor was a report from the independent
National Research Council, which questioned the basis on which Interior
scientists had made earlier Klamath flow decisions.
But Mr. Rove didn't let the matter drop after the Shepherdstown
meeting. Weeks later, he returned to Oregon and met with a half-dozen
or so farmers and ranchers. Thereafter, the White House formed a
cabinet-level task force on Klamath issues. The results became clear on
March 29, when the water was released to parched farms.
That hasn't ended the controversy. Environmentalists blame the
change in water levels for the subsequent death of more than 30,000
salmon, calling it the largest fish kill in the history of the West.
A National Marine Fisheries Service biologist, Michael Kelly, has
asked for protection under federal ``whistle-blower'' laws, saying he
was subjected to political pressure to go along with the low-water plan
and ordered to ignore scientific evidence casting doubt on the plan.
This month, a federal judge ruled the administration violated the
Endangered Species Act in the way it justified the water diversion.
Administration officials note that the judge found fault only with
a narrow portion of the biological opinion, and didn't order changes in
water flow. Interior is investigating the cause of the fish kill, Mr.
Pfeifle says.
Oregon farmers point to other factors in the salmon kill, including
water temperature and the presence of an infectious disease during
salmon-spawning season. And they haven't stopped pressing to keep the
irrigation water coming.
A few weeks ago, the federal Bureau of Reclamation in Klamath Falls
warned farmers that the department would curtail the irrigation flow.
Irate, Republican Rep. Greg Walden began making calls to protest. His
first one went to Mr. Rove's office.
Within hours, the idea was dropped. Interior officials say managers
from two cabinet departments agreed on a way to avoid it.
______
Additional Testimony by Michael Kelly submitted for the record
August 8, 2007
Mr. Chairman, in response to your invitation as I understand it, to
submit additional information for the record within 10 days of the
hearing, I offer the following supplemental testimony.
My key points in this supplemental testimony are:
1. In his answers to questions at the hearing, Dr. Lewis
misrepresented the scientific information that was available in 2001
and 2002, as well as information that was available in July 2007. And
the NRC's Committee's (chaired by Dr. Lewis) highly unusual and hasty
``interim report'' hindered the proper management of a species listed
under the ESA (threatened Klamath River coho salmon) by not using the
same legal standard as the ESA. The question is why they allowed such a
critical distinction to be absent when they should have known the
potential risks associated with not using the ESA's legal standard.
2. The Interior Inspector General and the Office of Special
Counsel failed to find information that was revealed by the Inspector
General of the Commerce Department. This information revealed serious
short-circuiting by the same NMFS Assistant Regional Administrator in
two consultations, since ruled to be illegal. Both of these
consultations allocated a valuable resource in a way that the normal
process would not have allowed.
3. The Committee would do a public service if it were to ask those
involved, including the then NMFS Assistant Regional Administrator (who
now runs the office of Protected Species), to tell them who ordered or
requested both the unusual procedures at the agencies and at the NRC,
and who complied and why.
4. The Committee should also consider taking affirmative steps to
prevent further similar harm to protected species as a result of risky
administrative actions that are implemented faster than they can be
reviewed by Congress or the courts.
Re: Dr. Lewis' vague and overly broad assertion that higher flows from
Iron Gate Dam could harm coho salmon in the Klamath River.
In answer to a question from Representative Walden, Dr. Lewis
claimed that the science shows likely harm to ESA-listed fish if water
levels in the lake and flows in the river are increased as required in
NMFS and USFWS BiOps. Dr. Lewis was vague about which of the tree
listed fish would be harmed, and he did not provide specific
information about which season(s) of the year he was addressing. These
are very important distinctions, so I would like to clarify them.
I would not argue that higher releases from Iron Gate Dam in July
and August, and perhaps early September, might actually be harmful if
they raise temperatures without providing a benefit.
However, using data gathered by state and tribal biologists, our
own field observations, and our best professional judgment, we
determined that flows of 1000 cubic feet per second (cfs) would help
juvenile coho in the mainstem Klamath gain access to cooler tributary
streams. Many streams that enter the Klamath River are blocked at their
mouths by deposits of cobbles and gravel when the river is below 1000
cfs. If fish cannot access these streams, they are forced to live out
the summer in the mainstem Klamath River where high temperatures and
disease make their chances of survival very low. These fish are
probably just as likely to die whether or not higher releases from Iron
Gate Dam contribute additional warm water. Therefore, in our best
professional judgment, it makes sense to provide flows that allow
juvenile coho to swim up cooler streams to get out of the warm water,
which they are known to do when given the chance.
(``Our'' and ``we'' indicate the opinions of myself and other NMFS
ESA biologists at the time of our respective consultations.)
In the spring (April, May, and early June), juvenile coho salmon
that have managed to survive the rigors of life in the Klamath and its
tributaries for almost a year and a half are migrating out to sea.
Available information, apparently without exception, shows higher
survival for juvenile salmon that migrate to sea during higher spring
flows. Higher flows help speed their migration and avoid predators
during this period of very high vulnerability. These fish are critical
to maintaining the Klamath population, and it makes sense to provide
them with conditions that should improve their survival.
The NRC interim report cites data that don't show a conclusive
trend to higher survival to adulthood of Klamath River coho that
migrated downstream in high flows. These data also do not show a
conclusive decrease in survival. The interim NRC Report also
acknowledged that ``[s]tocks of native coho salmon have declined
greatly in the Klamath River Basin over the past several decades'' and
that ``...standard methods for observing and counting spawning are not
easily applied, and the size of the spawning population is unknown.''
The fact that the adult population is unknown demonstrates that the
population trend data is probably unreliable. So how can the NRC
Committee justify using such a small amount of inconclusive and
unreliable data from the Klamath River to refute the large body of data
that conclusively demonstrates benefits in every other place? This use
of a small amount of inconclusive data completely shifts the risk to
the species, which is not legal under the ESA.
Again, optimal flow releases from Iron Gate Dam in July, August,
and early September are just one part of the overall picture.
Therefore, I think it is irresponsible to suggest that higher flows
could hurt coho salmon at all times, as Dr. Lewis appears to do in
answering Representative Walden during the hearing. Spring releases
from Iron Gate Dam do not result in increases in temperature that are
harmful to coho, yet Dr. Lewis states that higher releases will harm
coho due to adding more warm water.
Additionally, there is more recent information on the effects of
high spring flows in the Klamath River. This information suggests that
parasites which infect and kill juvenile salmon appear earlier in the
season when spring-time flows are lower, and later in the season when
flows are higher. Therefore, higher spring flows may delay the outbreak
of these parasites and give juvenile salmon more time to migrate to the
ocean before the parasites get to them.
Again, the NRC interim report's failure to address spring flows in
any meaningful way, and certainly not in conformance with the standards
required by the ESA, left the door open to the Administration's
political desire to begin full deliveries of irrigation water at the
start of the season on March 29, 2002.
While I cannot speak about Dr. Lewis' remarks that high lake levels
could be harmful to endangered suckers, I would suggest speaking to Dr.
Douglas F. Markle of Oregon State University. The CRS Report for
Congress: The Endangered Species Act and ``Sound Science,'' January 8,
2007, states:
Oregon State University researchers released an analysis of the
NRC Interim Report, concluding that the speedy completion of
this document contributed to multiple errors that detract from
its scientific usefulness.
The CRS report cites the following journal article, which I was
unable to obtain on short notice:
Michael S. Cooperman and Douglas F. Markle, ``The Endangered
Species Act and the National Research Council's Interim
Judgment in Klamath Basin,'' Fisheries, v. 28, no. 3 (March
2003): 10-19.
Re: Dr. Lewis' inaccurate statement that Iron Gate Dam contributes
only 10% of the water at the mouth of the Klamath River, and is
150 miles upstream of the mouth, and, therefore, wouldn't have
caused the 2002 fish kill.
These claims sound more like political talking points than
information based on fact and science.
I assume that the 10% figure must be some sort of yearly average of
flow contribution to the overall basin run-off reaching the mouth of
the Klamath River. It certainly is not the contribution of Iron Gate
Dam releases during the summer and early fall. Presently (July 30,
2007) according to stream gages at the mouth of the Klamath, Iron Gate
releases are contributing 43% of the total flow. This can be easily
verified on the USGS stream gage website. Iron Gate releases
contributed about 30% of the flow during the fish kill, and, of course,
would have been greater if the flows would have conformed to the flows
that NMFS determined in 2001 were required to avoid jeopardy to coho.
And, as stated by the USFWS in their investigation of the 2002 fish
kill:
Overall, the hydrology of the Klamath River was driven by
discharges from Iron Gate Dam during August and September 2002.
Iron Gate Dam being 150 miles upstream probably makes it more
valuable to fish, not less valuable, as suggested by Dr. Lewis. It
takes approximately three days for water released from Iron Gate Dam to
reach the mouth of the river. Ambient air temperature is such an
important factor in determining river water temperature, that the
further upstream warm water is added, the more it would be moderated
and conform to the temperatures that would exist at the river mouth
anyway. As stated by the U.S. Department of the Interior Geological
Survey in their 2002 report on Klamath River water conditions:
Stream temperatures typically fluctuate in response to changes
in the weather, and they closely follow patterns of air
temperature.
I am not claiming that additional water released from Iron Gate Dam
would never cause higher temperatures at the mouth, or that bad water
on top of bad water would not be a waste. I am claiming that the
further away the release originates, the less influence the water will
have on temperatures downstream. The 150-mile taking point is at best
irrelevant, and at worst is misleading.
In fact, additional water was released into the Klamath River
towards the end of the fish kill, with the following effects reported
in the USFWS fish kill report:
During September 2002, average daily water temperatures
declined from 22.8 to 17.3 ``C (73.0 to 63.1 ``F). While this
coincided with the increased discharges from Iron Gate Dam, air
temperatures had already started to decline by September 23,
2002
These findings illustrate that warm water released from Iron Gate
Dam doesn't necessarily cause increased temperatures at the mouth of
the river. Air temperatures determined what the water temperature would
be by the time it reached the lower river. It was actually cooler when
it reached the fish, and it appeared to have the desired effect of
drawing the fish upstream.
Re: Causes of the fish kill, and the implications for ESA management
action (the ESA scientific standard vs. the academic scientific
standard)
The two main on-the-ground investigations (USFWS and CA Dept of
Fish and Game) into the causative factors leading to the fish kill
conclude that low flows were likely to be a contributing factor. The
USFWS report emphasizes that if a pulse of additional water would have
arrived at the critical time, due to either rainfall or releases from
Iron Gate Dam, the water may have triggered the salmon to migrate
upstream. Upstream migration would have reduced the density of fish in
the lower river and reduced or prevented the mass infection of the
fish.
Fish and Game's report gives more weight to the possibility that
steady low flows present throughout September caused fish to be unable
to migrate upstream because the depths of certain riffles were too
shallow. (The USFWS report mentions this as well, but gives it less
weight.)
Obviously, there are so many variables that it is difficult to say
conclusively that the fish kill would have been averted by more water
from Iron Gate Dam--either by higher base flow or a pulse. And because
these investigations are not conclusive, it is easy for someone using
an academic scientific standard, like Dr. Lewis, to say that the
science doesn't support changing the way water is managed. However, as
I have stated repeatedly, that academic standard, which requires
statistically supported conclusions, is not the legal standard required
by the ESA.
We know that there was a unique set of circumstances present in the
river at the time of the fish kill. (The fifth lowest flow since 1951;
an earlier than normal upstream migration; a larger run size than the
25-year average, etc.) And we have evidence from experienced federal
and state fisheries biologists working in the field, who say that the
riffles appeared too shallow for upstream migration, possibly due to
recent (winter 1997-98) deposits of gravel.
So when a biologist considers this information in an ESA decision
making context, how should they use this information to make a legal
conclusion? I try to illustrate the process below using the fish
example.
Of this unique set of circumstances, the only thing that can be
controlled, at least in the short term, is river flow. You can't change
the timing of the salmon run; you can't make it rain; you can't make
air temperatures cooler; you can't eliminate the presence of disease
vectors; you can only change the river flow. The best available data,
while not conclusive, shows a reasonable likelihood that more water,
either in a pulse or as a higher base flow, could have helped.
So, in an ESA consultation for the Klamath Project, if you want to
avoid the unique set of circumstances that we know can cause a fish
kill, the only thing that can change that has scientific support, is to
provide more flow from Iron Gate Dam. If nothing is changed, you are at
high risk of another fish kill. Therefore, you must, by law, give the
benefit of the doubt to the ESA listed species, and err on the side of
caution in making a conclusion. If you wait for conclusive scientific
information that meets the standard used in the NRC interim report, you
may never be able to provide reasonable protections for salmon, and
that is why this approach would violate the law.
And because, as Dr. Lewis suggests, there could be risks to the
fish by adding additional warm water, you would also be required to
assess the situation before making in-season changes such as a pulse of
water. So, for example, hydrologists should also be consulted to model
the situation in real time to ensure that a high temperature threshold
[e.g., 21 degrees Celsius, which may halt migration] is not exceeded
due to a release from Iron Gate Dam.
Re: The IG 2003 report on Rove's influence.
The Interior IG concluded that nobody working on the 2002 Klamath
BiOps claimed to feel any pressure to get a specific result. While I
may have told investigators that I was never threatened with a specific
``do this or else,'' I certainly felt pressure when being asked to
perform as the technical lead biologist in an obviously illegal action.
I think that any reasonable person would say that pressure was applied
when I was given the choice to behave in a legal and ethical manner, to
help break the law.
Additionally, when the President publically states, ``We'll do
everything we can to make sure water is available for those who farm,''
does that not cause some pressure? When Karl Rove tells high level
appointees that the political goals of the administration include
providing full irrigation deliveries, does that not cause pressure? And
when Vice President Cheney calls officials regarding the Klamath
consultation, and that fact reaches federal employees on the ground,
does that also not cause pressure?
I would assert that all of the above activity creates an atmosphere
of intimidation. While there is no direct threat, there is an implied
threat, or at best, an understanding that the boss will be very happy
with you for getting his desired outcome, and not so happy with any
other result. Perhaps all of the people up and down the chain of
command have ice water in their veins, but I think the result (a
blatantly illegal BiOp and intentional bypassing of established
controls) speaks for itself. People felt pressure to get the desired
result, even if it meant breaking the law.
Additionally, the Interior IG's report finds no irregularities
pertaining to development of the 2002 BiOps. As we now know from the
investigation into NMFS' OCAP BiOp, Jim Lecky bypassed an established
and necessary review by the Regional Section 7 Coordinator during
development of the 2002 BiOp.
Additionally, the court ruling by the U.S. District Court for the
Northern District of California (Case #C-02-2006) on the 2002 NMFS BiOp
occurred in 2006, so the IG would not have known that the 2002 BiOp was
later found to be illegal on three major points. (This decision was not
appealed by the Federal government, and the 9th Circuit Court of
Appeals upheld the lower court's ruling on appeal by the water users.)
In fact, speaking of illegal actions, Committee members had to help
the Acting IG to understand and admit that violations of the Code of
Federal Regulations are illegal acts. The IG has, therefore, been wrong
in stating publicly that it had not found any illegal actions simply
because it did not seem to have evidence of criminal violations. This
also leads to the question I noted, in part, in my testimony of who
reviewed my draft 2002 BiOp and the draft IG reports at Justice, and
what guidelines are in place for such reviews.
The former Special Council at OSC, Elaine Kaplan, recently emailed
Jeff Ruch at PEER, stating the following regarding my whistleblower
disclosure:
It looks like we probably made a mistake not referring that
one. At the time, I viewed it as a matter that should probably
be handled in court under the APA (where it ultimately was
addressed). But I think we missed the larger issue of political
manipulation.
Apparently, if the Special Council had known what she now knows,
she would have referred my case to the IG for an investigation.
Sue Ellen Wooldridge has now come forth with information that Vice
President Cheney, and/or his office, contacted her regularly regarding
the Klamath consultations--a fact that was not known or admitted to the
IG.
Therefore, the Interior IG failed to find irregularities that
existed at that time, and there is new information that lends weight to
possible wrongdoing.
If the Committee is interested in ``connecting the dots'' between
Cheney (or other high level officials), Wooldridge, and Lecky, it would
be prudent to interview Wooldridge and Lecky about their contacts with
each other and other people who may have been in the loop. Also, the
biologist who I replaced on the Klamath BiOp mentioned Wooldridge to me
as being involved in Klamath issues. So I think it is reasonable to
assume that Lecky and Wooldridge knew each other at the time.
The Committee may also want to take steps, including some that I
recommended in my testimony, and those recommended by the Acting IG at
Interior, such as requiring officials to sign off on any changes they
make to career scientists' draft biological opinions and to state the
reasons and data supporting those changes.
[NOTE: Additional information submitted for the record has
been retained in the Committee's official files.]
------
Ms. Bordallo. Thank you very much, Mr. Kelly. I do have a
couple of questions for Dr. Lewis. Dr. Lewis, in 2002 you
appeared before this committee and testified that the National
Research Council did not find a sound scientific basis for
operating the Klamath Project at the lake levels proposed by
the FWS or a sound scientific basis for the minimum flow levels
recommended by NMFS. Yet is it not true that you also testified
at that hearing that the committee found no scientific basis
for operating the project with the lake levels and minimal
flows that were being proposed in the Bureau of Reclamation's
10-year operating plan?
Mr. Lewis. Yes.
Ms. Bordallo. All right. When the Bureau implemented the
operating plan, did it include the measures that your committee
found had no sound scientific basis for, and was this not the
same plan that the court later found was arbitrary and
capricious?
Mr. Lewis. I do not know about the findings of the court
because they occurred after I ceased being with the committee.
Ms. Bordallo. All right. And what about the first part of
the question? When the Bureau implemented the operating plan,
did it include measures that your committee found had no
scientific basis for?
Mr. Lewis. Implemented when? In what year? Was this the
2002 plan or the 2000 plan implemented in 2001?
Ms. Bordallo. Yes, the 2002 plan.
Mr. Lewis. The agencies did not take the committee's report
as mandatory for implementation. They made up their own minds
as to how to proceed given the committee's interim report. What
we saw was that when the interim report came out and they saw
it, they became more flexible and more inventive.
They introduced some new concepts. For example, acquisition of
100,000 acre feet of reserved water that was not in the picture
before, and U.S. Fish and Wildlife Service became a little more
conservative in the way it was handling its responsibilities
for the suckers where the scientific evidence that was
available was contrary to what they were thinking earlier on.
So I think you could see the influence of the committee
report, the interim report, in the new biological opinions and
assessments that came out in 2002 but of course the agencies
are not required to take advice from an Academy committee, and
they used what they thought they should use and left the rest
for the future to consider.
Ms. Bordallo. So in other words your answer then is they
did not take it too seriously? They had ideas of their own?
Mr. Lewis. No, I think they took it seriously but they
chose what they thought they should use and left the rest for
later.
Ms. Bordallo. All right. Thank you. Thank you very much.
The Chair now recognizes the gentlewoman from Washington, Mrs.
McMorris Rodgers.
Mrs. McMorris Rodgers. Thank you, Madame Chair. I would
actually like to yield my time to Mr. Walden.
Ms. Bordallo. Mr. Walden is recognized.
Mr. Walden. Thank you. Dr. Lewis, I appreciate your
testimony and Mr. Kelly, yours as well. In Mr. Kelly's prepared
testimony, Dr. Lewis, he says and I quote, ``The Bush
Administration played the NRC like a fiddle.'' Dr. Lewis, did
you feel like the Bush Administration was playing the NRC like
a fiddle?
Mr. Lewis. No. I----
Mr. Walden. Did you feel Vice President Cheney manipulated
the NRC's work?
Mr. Lewis. Well I only knew what was happening from the
viewpoint of my committee.
Mr. Walden. Right.
Mr. Lewis. I knew that the committee had been given a
charge and filled out with members in a way that is absolutely
standard for committees of this type. It was obvious that the
agencies in the Klamath Basin could use outside committee
evaluation.
Mr. Walden. Right.
Mr. Lewis. And the National Academy was the obvious source
of this kind of information. So the formation of the committee
did not have any signals of politically motivated interference
and seemed quite logical and timely. The committee itself, once
formed, is immune from political meddling because of the way
the Academy has learned to handle its committees over the last
150 years.
The committee members are chosen so that they come from
diverse backgrounds and diverse disciplines. They are carefully
screen for conflict of interest and bias. They are required to
reach a unanimous conclusion that they can all sign onto. They
do not discuss their work while they are in session unless they
are in the company of an officer of the Academy, and they
deliberate--although they collect information in public and
hear testimony--they deliberate on their own without thinking
about politics or administration but thinking about the
scientific issues.
Mr. Walden. And as I understand the way the Academies work
there is an independent review panel in addition to yours that
reviews.
Mr. Lewis. Yes. There are several other safeguards. During
the report finishing process, the committee's preparation
report is monitored by two officials of the Academies, senior
people. External reviewers are selected. In this case I think
it was over 15 of these. Each one of them writes anonymously a
critical opinion. The committee is required to make a written
answer to every single opinion that is given in these reports,
page-by-page, and incorporate the changes in the report as
necessary to satisfy the report monitors.
Mr. Walden. Thank you. Let me go into the issues in the
Basin. If I understand the NRC's report that you all wrote,
which is quite a document, on a couple of things one, the fish
kill in the Klamath Basin. There have been press accounts that
Dick Cheney was personally responsible for it because he
directed the flows, and it is all the project's fault, and
80,000 we heard the latest figure of salmon were killed. As I
read your report, the independent scientists say that is not
what happened. Is that accurate? Can you describe what----
Mr. Lewis. Well I can only speak for the committee of
course.
Mr. Walden. Right. That is all I am asking.
Mr. Lewis. There are varied opinions on this so let me tell
you what happened. There was a mass mortality of salmon in the
lower part, let us say at the mouth of the Klamath.
Mr. Walden. Right.
Mr. Lewis. That was responsible for killing 33,000 chinook
salmon.
Mr. Walden. Thirty-three thousand.
Mr. Lewis. Thirty-three thousand.
Mr. Walden. Principally chinook.
Mr. Lewis. Yes, 99 percent chinook, out of a total run size
of 170,000 fish. This is a very serious matter, and had not
occurred before. At the time this occurred, we were in the grip
of a drought in the Klamath Basin, and the flows were very low.
As soon as the mortality occurred, questions came up as to
whether the Klamath Project operations were responsible for
this mortality, and our committee was asked specifically by our
sponsors and thus by the Academy to add this to our list of
things to address in our report.
We first looked to find out how often these kinds of
conditions had occurred previously. Going back to 1988, there
had been five previous droughts that were about the same, and a
couple even more severe in 1992 for example when there had not
been any salmon mortality. Then we began to think----
Mr. Walden. And similar flows?
Mr. Lewis. Flows, yes. The flows that were within the range
or in a couple of cases lower than the flows observed in 2002.
We began to think that this was not simply a matter of low
flow. We also considered the possibility that the Klamath
Project operation somehow might be involved, and once again we
reached a conclusion it was unlikely.
First of all, the Klamath Project was being operated at
that time the way it had operated since 1990 or earlier so
there had not been a change in operations. Second, the Klamath
Project is very far away from the mouth of the Klamath. It is
about 150 miles, 185 miles depending on where you take the
mouth or somewhat up from the mouth, and the idea that the
Klamath Project which passes only 10 percent of the water in
the Klamath Basin could generate flows that would give relief
185 miles away to salmon that were staging to migrate did not
seem realistic to the committee.
Another factor in the potential beneficial use of the water
from the Klamath Project is that that water is warm because it
comes from storage reservoirs. The salmon that are migrating
need cool water, particularly the early migrating fishes which
include the chinook. They need cool water. We think that the
salmon staged normally to migrate. They were waiting for a
signal, and that might be a cool flow caused by a little rain,
to go upstream. They waited too long because they did not get
the signal and disease overtook them and killed a portion of
them.
Mr. Walden. Thank you. My time has expired. Thank you,
Madame Chair.
Ms. Bordallo. Thank you. I thank the gentleman from Oregon,
and now the Chair recognizes the gentlelady from California,
Mrs. Grace Napolitano.
Mrs. Napolitano. Thank you, Madame Chair. Mr. Kelly, I read
your statement with great interest, and you talk extensively
about the difference in the burden of proof employed by the NRC
versus what is actually required to make decisions under the
ESA. For those who might interpret that as meaning that the
agency science conducted under the ESA is somehow less rigorous
would you explain the difference and the need for it?
Mr. Kelly. OK. I will start with the academic standard used
by the NRC committee in their interim report. They say that a
quote from the final report was this, ``The NRC committee is
charged to assess whether the agency's biological opinions are
consistent with the available scientific information requires
the committee to adopt a burden of proof that would apply in
the scientific community rather than the legal burden of proof
that applies under the Endangered Species Act.''
Their reasons for this, one being that we are presented
with a project, and we have to make a decision within 135 days.
We do not have the luxury of designing a scientific study with
a hypothesis and a statistical analysis that would then accept
or reject the hypothesis and provide a confidence of how right
you think you were in making your decision. Therefore the
Endangered Species Act requires us to use the best available
science and when the science is not conclusive to use our best
professional judgment.
Mrs. Napolitano. But that is given the right information?
Mr. Kelly. Right. Take all the information that we can get,
the best available science, and not just studies that are
performed on that species in that basin but to gather other
general information about the species that is known from
scientific studies in other basins for example.
Mrs. Napolitano. OK. Regarding the burden of proof and the
use of the broader scientific literature and concepts, et
cetera, which the National Research Council did not consider
appropriate to use, how in your past experience did the
Fisheries use such information in other situations and how did
it help you or did it help you and the Fisheries write stronger
biological opinions to make better decisions?
Mr. Kelly. Well I can give you an example. I have done a
number of Endangered Species Act consultations for replacements
of bridges in rivers where there is a lot of excavation and
whatnot in the rivers. We are not going to have information
from a particular river that says some amount of turbidity
caused by excavation in the river is going to kill some number
of fish. You could conduct a study like that but we do not have
that luxury.
Therefore, we look at the scientific literature in general
and see that we can expect a certain level of turbidity to have
an effect on the fish that are there based on this general
information that is in the literature and not for our
particular place. So we have to use that kind of information.
That is what we have.
Mrs. Napolitano. OK. And you suggest in your testimony the
essential fish habitat provisions in the Magnuson-Stevenson Act
should be strengthened because it also applies to non ESA
listed species. Do you personally think this could help keep
species off the endangered species list and thus prevent
conflict?
Mr. Kelly. I think it could. I think if we had done a
proper essential fish habitat consultation at the same time as
we did the biological opinion we could have required certain
things that would have addressed chinook salmon, and perhaps
one of those requirements would have been there would be higher
flows earlier in the season because the chinook salmon return
earlier than the coho salmon. Remember the biological opinion
just addressed the coho salmon. So we could have provided some
measure of protection for the chinook which may have averted
the fish kill but they are just recommendations.
First of all, we did not make them, and second of all if we
had made them they would have only been recommendations that
could have been ignored.
Mrs. Napolitano. I think I am running out of time but I
would like to ask another question in the next round.
Ms. Bordallo. Please go ahead. You have the time.
Mrs. Napolitano. Well one of the things that I kind of
wondered about in your specific situation of being a
``whistleblower'' is what does that do to your career? I know
that you felt it important, correct, because your work was
being--how would I say--misinterpreted?
Mr. Kelly. Yes.
Mrs. Napolitano. What would you say to this committee needs
to be done in order to protect others or to be able to ensure
that the information is not tampered with or that the
renderings are those that are going to be transparent, open,
honest?
Mr. Kelly. Right. I guess I would start by saying that of
course being a whistleblower is a very difficult situation and
can have negative consequences to your career within the
agency, and I found it interesting that the Inspector General
in their 2003 review of Karl Rove's influence stated that there
was no pressure felt by any of the working people. I suppose I
might have said that no one ever told me directly if you do
this or do not do this, this will happen to you. That never
occurred.
However, I think any reasonable person would realize that
if I am faced with being asked to support an illegal process--
which it was an illegal process according to the courts--and I
have to chose whether to help with this illegal process or
refuse to do the assignment, there is a tremendous amount of
pressure associated with that decision. So there certainly was
pressure, and I had to decide not to do the illegal thing.
I think possibly you could strengthen and make the process
more transparent by perhaps providing a biologist version of
their final opinion so that there would be a document to
compare the agency's final opinion to. Also I think you could
probably--I think as NOAA Fisheries has done as policy--make a
requirement that legal staff sign off on the opinions. In my
experience legal staff had always provided excellent guidance
and information, and I think obviously in the OCAP opinion they
were not consulted. I do not know if they were consulted in the
Klamath opinion but that would certainly strengthen things.
Mrs. Napolitano. Thank you, Madame Chair. I think it kind
of goes to one of the heart of the testimonies where people are
in tandem working, saying the things that they are expected to
say for fear of retribution I would imagine, and it is not hard
for us to understand that that can happen because they are
afraid for their job, and unfortunately there has got to be a
better way to be able to have an employee or a biologist or a
scientist be able to truthfully state what is correct for the
benefit of doing the right thing. Thank you, Madame Chair.
Ms. Bordallo. I thank the gentlelady from California, and
now the Chair recognizes the other gentlelady from California,
Mrs. Capps.
Ms. Capps. Thank you, Madame Chair. Dr. Lewis, I will ask
you a brief question just to follow up on the question that
Chairwoman Bordallo asked previously but I do also want to move
on to Mr. Kelly. The follow up question is: The Bureau of
Reclamation implemented a 2002 operating plan which was later
found to be arbitrary and capricious that your committee said
did not have sound scientific basis. Now does that mean then
that the Bureau cherrypicked what they did and did not agree
with in your plan? Is that your opinion?
Mr. Lewis. No. I think we should straighten out the
sequence of events that occurred after we issued our interim
report. Our interim report dealt with some proposals that the
Bureau of Reclamation had made that the committee felt would
lead to extremes of water use that had not been in the record
in the recent past, and therefore we had no scientific
evaluation of them, and we thought it was not reasonable given
the lack of experience with those flows for them to propose
those flows.
So we questioned the validity of that proposal. However,
immediately thereafter both they and the Fish and Wildlife
Service made new opinions and made new assessments, and the
USBR backed away from some of the things they had proposed
earlier, and came up with some new proposals, one of which was
the----
Ms. Capps. I do want to move on.
Mr. Lewis. OK.
Ms. Capps. The words arbitrary and capricious still not----
Mr. Lewis. Those words were not involved in my study
because that is a result of a court case that came after.
Ms. Capps. Well, the court found that.
Mr. Lewis. Well I did not study the court case.
Ms. Capps. OK. Thank you. That helps to clarify it. Mr.
Kelly, I will be in tandem with my California colleague. I
guess that is not unusual but I want to give you a chance to
explain a little bit further. For example, it is understood
that it was employee complaints regarding Julie MacDonald's
activities that led in part to investigation of her conduct by
the Department of the Interior Inspector General. To your
knowledge, were there surveys of NMFS employees similar to
surveys taken of Fish and Wildlife scientists?
Mr. Kelly. Yes. The Union of Concerned Scientists and
Public Employees for Environmental Responsibility (PEER) also
conducted similar surveys with NOAA Fisheries staff, and I
believe they found actually a slightly less favorable situation
in those agencies. I do not have any of the statistics but
there were numerous complaints. I believe 57 or 58 percent of
the biologists or scientists surveyed had said that they were
aware of times when they had been or someone had been asked to
change conclusions for nonscientific reasons.
Ms. Capps. Right.
Mr. Kelly. So those surveys----
Ms. Capps. Those surveys were done. Do you know what
happened to them?
Mr. Kelly. I believe you can probably find them on the
Union of Concerned Scientists website or PEER's website.
Ms. Capps. Was any action taken as a result? There was some
follow up following the Department of the Interior's Inspector
General there, Fish and Wildlife. There was sort of some action
that was taken. Did you see any response after these surveys
were taken amongst you and your fellow scientists?
Mr. Kelly. I am trying to think. I am trying to remember
whether I was actually still with the NMFS or not but I am
aware that there was an email that was sent by Dr. Hogarth that
addressed that survey, and I cannot tell you specifically what
it said but there was.
Ms. Capps. OK. Before you left maybe you could describe--
and I know again you have already spoken to this a little bit--
as a biologist, as a scientist, what is the work setting like
when you see your work produce results and then someone else
comes in and they are altered, some findings, and then those
people are rewarded and promoted and so forth? What is the
climate and I guess if you could describe that but also leave
us with you gave some recommendations and transparency of
course is to be desired. Maybe there are some more specific
advice you would want to give us.
Mr. Kelly. OK. I would start with another piece of advice
that I would give, and that is to be very careful with these
peer reviews, and if you are to conduct a peer review with some
very well-informed people, you might find out some very
valuable things. The final report that the NRC committee put
out has all kinds of great information in it, and I hope that
the agencies act on most of it.
However, you have to make sure that the committee uses the
same standard in reviewing the documents that the documents
were required to use when they were developed. It makes no
sense at all to use some other standard, and to me that is the
main reason I think that something was going on. The NRC
committee never addressed what standard they used in their
interim report, which was the report that ended up leading to
the flows that were started during the beginning of the
irrigation season.
They do finally as I quoted state that they used the
different standard than the Endangered Species Act in their
final report. So be careful with the advisory panels. Take some
of their information because it is very good. What else was in
the question? I am sorry.
Ms. Capps. That is probably sufficient.
Mr. Kelly. I mean the work environment. That is right. I
can touch on that. Obviously it is personally very
discouraging. I am no longer with the agency, and because
fellow biologists know what happened, there is very low morale
amongst these people realizing that----
Ms. Capps. Do you stay in touch with some people still
there?
Mr. Kelly. Yes, all the time. I have good friends there.
Ms. Capps. Thank you. Thank you very much. I yield back.
Ms. Bordallo. Thank you. Thank the gentlelady from
California, and now the Chair recognizes our guest colleague
here, Mr. Walden from Oregon.
Mr. Walden. Thank you, Madame Chair. Mr. Lewis, do you want
to comment on this notion that your standards were different
than ESA standards and why that might have been and what the
practical implications of that are to the report your team
finished?
Mr. Lewis. Yes. I do not see this issue quite the way Mr.
Kelly does.
Mr. Walden. Why is that?
Mr. Lewis. Well because the committee did exactly what it
was told to do. That was to assess the degree of scientific
security of the decisions that were made. So we were basically
asked to use a sliding scale and rate some aspects of these
decisions, very strongly supported, some partially supported,
and some not supported, and we did that. We found one set of
decisions related to the Klamath Project where we thought that
the agencies had actually made decisions that had been
contradicted by data collected from the project.
Mr. Walden. Right.
Mr. Lewis. And that is a totally different matter. That is
where the decision process runs against the data, and that is a
very risky thing to do that.
Mr. Walden. And that was both the lake levels and the
outflows?
Mr. Lewis. Right. Yes. In----
Mr. Walden. Two principle decisions that led to the water
cutoff I might add.
Mr. Lewis. Yes. And the committee did put in--and I saw to
it that it went in--an acknowledgement that the agencies do not
have the latitude under the Endangered Species Act to conduct
extended studies, and it is perfectly appropriate for them
under those conditions to use professional judgment,
comparisons with other habitats and so forth as part of their
decisionmaking process.
Mr. Walden. But I believe the language you used in the
report indicated that maybe that decisionmaking process went
against their data.
Mr. Lewis. Yes. That is----
Mr. Walden. And carried with it a high risk.
Mr. Lewis. That is a different matter. It does not make
sense that agencies would run against data that they had
collected. However, we have to realize that that data had
accumulated slowly and was just about ready for evaluation
about the time they did their opinions and assessments. So I
think that may possibly explain why that happened.
Mr. Walden. And I think it is important to remember too
this is not a static basin. There is work ongoing. Your report
obviously looked at issues involving fish passage at Chiloquin
Dam, Sprague River. That is now on track under this
Administration to be completely removed. Do you think that will
have a positive affect on sucker habitat access and survival?
Mr. Lewis. Well it opens up potentially a great deal of
habitat for spawning that has not been available for suckers.
So it is one of the most useful things we could do. It will be
an experiment. It is always possible that that habitat up there
is not as suitable as we think it is but the biologists who
know about the suckers seem to think there is a good chance
this would improve reproductive output.
Mr. Walden. And at the time of your report the A Canal was
not screened and many of the sucker larvae were sucked out into
the fields. Now it is screened. Do you think that will have a
positive impact?
Mr. Lewis. Yes. That was something called out of the high
priority by the committee because it is an example of take, and
take of course of an endangered species is prohibited under the
Endangered Species Act, particularly when it occurs through a
Federal agency.
Mr. Walden. Let me ask you this on that point on the issue
of take. As we all know there is not a commercial harvest on
coho.
Mr. Lewis. No.
Mr. Walden. There is a sport fishery on coho.
Mr. Lewis. On coho, yes.
Mr. Walden. On coho. So there is a sport fishery, and my
understanding is that in 2007 this year that fishery is 50,000
coho recreational of which they expect a 20 percent hook
mortality on the listed species or 1,000 listed coho will
accidentally be caught and released and die.
Mr. Lewis. I do not know those statistics.
Mr. Walden. They are from the Pacific Fisheries Management
Council's February report.
Mr. Lewis. Where are these coho located?
Mr. Walden. Out in the Pacific Ocean.
Mr. Lewis. Yes. Well see not all populations of coho are
protected by the Endangered Species Act.
Mr. Walden. This is from Cape Falcon to Washington. Cape
Falcon, California to Washington.
Mr. Lewis. The population that is protected in this case is
the Southern Oregon-Northern California Coast population which
is limited geographically to the Klamath Basin and one or two
adjacent basins.
Mr. Walden. OK. But out in the ocean how do you know the
difference?
Mr. Lewis. Well there is a bit of a problem there. That is
true.
Mr. Walden. Yes. I know Mr. Kelly's testimony talks about
how even a few dozen of the listed species being killed and the
kill off that occurred in 2002 is a big deal when you are
trying to save a species, and yet we seem to regularly have
harvests going on out in the ocean that as an incidental
portion of that in sports fishery we get snag mortality that in
2001 was 214 post hook mortality is what they estimated, 2002
they figured it to be about 600 and 2007 they think it will be
about 1,000.
Mr. Lewis. I have no special knowledge of this but it is
possible that the National Marine Fisheries Service has seen to
it that there are some geographic restriction or other kind of
restriction that protects the threatened population but allows
sport take elsewhere where the populations are not protected
under the Endangered Species Act.
Mr. Walden. One final question. I noticed that there were
peer reviews from Trout Unlimited and Nature Conservancy as
part of the review process. Did they ever question your results
over the burden of proof standard?
Mr. Lewis. We are not allowed to know what names to attach
to the individual critiques.
Mr. Walden. All right. Thank you.
Mr. Lewis. We were required to answer all challenges made
by the reviewers and amend the report or show the monitors that
we could rebut those challenges.
Mr. Walden. All right. Very good. Thank you very much.
Thank you, Madame.
Ms. Bordallo. I thank the gentleman. We are required to
vote in just a very few minutes. So I just have one quick
question to Mr. Kelly. Based on the science that you were
familiar with as a NOAA biologist, what do you think led to the
massive salmon mortality in 2002? If you could give us a quick
answer.
Mr. Kelly. Well I think that the fish had a hard time
getting upstream and distributing and became crowded in low,
warm water in the presence of disease, and that the parasites
ultimately killed them. It is possible, though not definite,
that more water and I would like to point out that Mr. Lewis
pointed out that it was a 10 percent contribution to the lower
Klamath from the releases at Iron Gate Dam. Presently it is
about 40 percent and typically it is anywhere from 30 to 50
percent of the flow.
So if they would have had the flows that we had prescribed
as our long-term prescription, there would have been more water
which would have made it possibly easier for the fish to move
upstream and avoid the crowding situation. That is also the
only thing you have control over is the flow. So if you are
going to be precautionary about it, you need to consider more
flows to help the fish.
Ms. Bordallo. I thank you very much, Mr. Kelly and Mr.
Lewis, and I wish to thank all of the panelists, and again to
apologize for the delay because of the votes in between, and
thank the other panelists, panel one, two, three and four. And
I would also like to thank my colleagues today. The Committee
may have additional questions in writing, and the record will
remain open for an additional 10 days, and if there is no
objection, the Committee on Natural Resources now stands
adjourned.
[Whereupon, at 4:45 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows:]
[A statement submitted for the record by Dominick A.
DellaSala, Ph.D., Chief Scientist and Executive Director,
National Center for Conservation Science & Policy, follows:]
Statement of Dominick A. DellaSala, Ph.D., Chief Scientist and
Executive Director, National Center for Conservation Science & Policy
Chairman Rahall and Committee members: thank you for holding this
oversight hearing regarding the political influence of the Bush
Administration on agency science and decision-making. I am especially
appreciative of this opportunity to submit testimony regarding one of
the numerous mishandlings by this administration of the Endangered
Species Act, as previously documented in the May 9 hearing in this
Committee on the ``Endangered Species Act Implementation: Science or
Politics?'' At that time, I testified in front of the House Natural
Resources Committee (``Committee'') on how interference in the draft
northern spotted owl recovery plan by a ``Washington D.C. Oversight
Committee'' led to a scientifically flawed and politically motivated
recovery plan. I understand that my testimony was challenged by the
Forest Service and Fish and Wildlife Service (FWS) in response to
issues raised by members of this Committee. Thus, I am submitting
additional testimony to respond to these assertions and to contribute
to this oversight hearing. Since June 2006, I have served as a member
of the FWS-appointed spotted owl recovery team. During this process, I
witnessed numerous instances of distortions of science by the recovery
team and FWS, and a shift in the process under which the recovery team
operated from consensus to responding to direction from the Washington
Oversight Committee.
In this testimony, I emphasize four main points:
(1) the draft recovery plan for the spotted owl was interfered
with by a Washington Oversight Committee, which included Deputy
Assistant Interior Secretary Julie MacDonald and Deputy Secretary Lynn
Scarlett among others, as documented in the excerpts of recovery team
meeting notes, emails, and personal meeting notes that were submitted
into the congressional record on May 9th;
(2) tthe much needed re-examination of Ms. MacDonald's involvement
in ESA decisions should be opened up to a broader range of ESA related
issues, especially the draft spotted owl recovery plan;
(3) tthe flawed draft spotted owl recovery plan is tied to several
related forest policy decisions, including the recently proposed
critical habitat exemptions for the northern spotted owl and the soon-
to-be released Western Oregon Plan Revisions (WOPR) of the Bureau of
Land Management (BLM); and
(4) tthese decisions should be placed on hold while an
investigation is conducted into the draft owl recovery plan and a new
recovery team assembled that includes independent scientists.
Although Deputy Interior Secretary Scarlett recently stated
``Secretary Kempthorne and I are strongly committed to scientific
integrity at the Department of the Interior--I believe we are taking
positive steps in this regard,'' the commitment to examine ESA
decisions does not extend to the draft spotted owl recovery plan that
also may have been tampered with by Ms. MacDonald and other high-
ranking officials. The draft owl recovery plan is a key document that
could trigger rollbacks in old-growth forest and wildlife protections,
including the recently proposed critical habitat determination for the
spotted owl and the BLM WOPR among others. A weak owl recovery plan
could result in irretrievable and irremediable losses of remaining old-
growth forests not only for owls but in some cases salmon and other
wildlife species. It could also trigger the future need to up-list the
owl to endangered status.
Prior to September 29, 2006 the recovery team was operating under a
consensus charter in reaching decisions on the spotted owl recovery
plan. After that draft was submitted to Washington D.C. for internal
review, the recovery team was moved out of consensus decision-making
and into a lesser defined ``advisory role,'' increasingly responding to
direction from the Oversight Committee. At that time, the amount of
official agency note taking declined precipitously and meeting
summaries became superficial. Therefore, the materials noted in my
testimony were derived from the few detailed emails and recovery team
meeting notes that contained relevant information and from my personal
notes taken during recovery team meetings. These excerpts are backed by
letters from scientists and lengthier documents should the Committee
require further proof.
Issues raised by Committee Members, FWS Response, and My Response
Issue #1: Dr. DellaSala asserted that there was a lack of consensus
for decision making.
FWS response: The recovery team fully complied with their charter;
they worked hard to reach consensus, and most decisions were achieved
through the consensus process. When consensus was not reached, it was
only a few individuals who dissented, after much discussion and efforts
to accommodate all points.
My response: The recovery team operated under a consensus charter
until September 29 when the recovery team's initial draft recovery plan
was submitted to D.C. for internal review. While that draft plan did
not receive the consensus support of the entire recovery team, for
example, several of us expressed reservations or disagreement with the
level of habitat protection for the owl, the path to resolving this
disagreement--scientific peer review by qualified owl experts--did not
appear to be objectionable. Unfortunately this approach to address our
disagreements was not followed.
Instead, after September 29, our recovery team was instructed to
change its approach. The following direct quotes were extracted from
FWS recovery team meetings notes that demonstrate how the process
shifted from consensus to the team increasingly responding to direction
from the Oversight Committee:
On October 19, 2006 the recovery team received a memo via e-mail
from the FWS Pacific Region Office containing a new set of rules for
making decisions. The memo recommended ``the team no longer make
decisions by consensus.'' At the same time, the recovery team received
a second memo, identifying topics for discussion at future meetings and
teleconferences. Among the topics listed were ``coordination with
decision makers'' (i.e., the Oversight Committee), and the need to
``ensure we are exploring the options described by the decision
makers.'' [emphasis added]
Source: October 26-27, 2006 recovery team meeting notes taken by FWS--
``NSO Recovery Team Meeting''
``The team discussed moving away from consensus decision making
in order to meet our timeline and more fully capture scientific
uncertainty associated with the options.''
Source: January 12, 2007 email from Dave Wesley to the recovery team
``Here is our plan--the IST will also draft the provincial
Option, Option 2, using the best information from our last
meeting and guidance (direction/questions) we received from DC.
The noted shift in the decision making underscores how the recovery
team, primarily operating through the IST (Interagency Support Team),
was responding to direction/ questions from the Oversight Committee in
D.C. rather than proposing recovery plan options based on the best
available science.
From my personal notes taken during a recovery team meeting on
February 7, 2007, the recovery team was instructed by Paul Phifer that
``consensus is not the purpose--we need to evaluate options based on
criteria'' and by Dave Wesley ``the new direction from the oversight
committee changed things--the paradigm has shifted--we need to make
Option 2 as best as we can.''
It was more than a few individuals that expressed concerns
regarding this shift in decision-making. There were misgivings from
other recovery team members, including the Washington State governor's
office, the Washington Department of Natural Resources, and the
Washington Audubon Society (per my meeting notes).
Issue #2: Dr. DellaSala asserted that the FWS did not or would not do
peer review, while maintaining that the FWS should conduct peer
review because the habitat percentages for various provinces
the owl occupies are inaccurate.
FWS response: The habitat percentages in the draft plan were
developed by the entire recovery team. The recovery team, including Dr.
DellaSala, agreed these percentages were at a point in which they could
be peer reviewed, and the team agreed the appropriate time for that
review was during the public comment period. In its Notice of
Availability published in the Federal Register, the FWS specifically
asks for comment on these percentages. Furthermore, the FWS has
initiated peer review by contracting with 2 professional societies for
independent review and is seeking additional review from the three
scientists whose data were used to develop these habitat percentages.
My response: According to my notes from the August 22, 2006
recovery team meeting, we had considerable discussion over a technique
for developing habitat thresholds (i.e., how much habitat to include in
the reserves) initially proposed by Ed Murphy of Sierra Pacific
Industries, during which I and others raised significant objections
that he misrepresented data from two studies in the southern part of
the owls' range (Franklin et al 2000, and Olson et al. 2004) and was
``low balling'' the habitat thresholds. My notes go on to say that
because there were disagreements over the habitat thresholds, the
recovery team reached consensus to send them out for peer review. This
came up again on August 23, after the discussion was re-opened, and the
recovery team agreed a second time to send the thresholds out for peer
review rather than hold the plan up over this disagreement. During a
September 7, 2006 recovery team conference call with leading owl
scientists (Drs. Robert Anthony and Alan Franklin), the scientists
supported my concerns that the proposed habitat thresholds appeared too
low. However, when higher habitat thresholds were proposed, they were
dismissed by the recovery team and FWS refused to consider alternative
proposals to expand the reserve network or increase the habitat
thresholds. In an October 18, 2006 email to the FWS, I stated that one
of the conditions for moving forward with the draft recovery plan was
to ``convene a science panel with owl scientists and others to discuss
the applicability of ``new science'' and the validity of the assertion
that ``past'' science should be de-emphasized. The panel should also
evaluate whether non-reserve strategies are scientifically sound.'' In
particular, the so-called new science the recovery plan purports to be
based on pertained primarily to the disputed habitat thresholds in the
recovery plan initially proposed by industry.
Given these discrepancies, recovery team members, including myself,
the Washington Audubon Society, and the Washington DNR requested that
peer review be conducted by FWS of the habitat percentages prior to
public release of the draft owl plan. This request was repeated in
recovery team meetings and conference calls with FWS on September 11,
October 20, November 17, and March 2. In response, the recovery team
was instructed by FWS that we needed a decision from D.C. on how they
wanted us to proceed before we bring scientists in to discuss the
habitat percentages. FWS did not agree to release the habitat
provisions for peer review until the March 2 conference call when the
Washington DNR and I repeated our request. However, peer review did not
take place until after release of the draft plan in the Federal
Register on April 26. This seven-month delay in peer review resulted in
the incorporation of habitat thresholds into the draft recovery plan
that were not based on rigorous scientific standards and were in direct
opposition to warnings by researchers whose seminal work was
incorrectly used in the recovery plan. I have included the following
statements from these researchers that underscore my concerns:
``...we do not recommend that forest managers use our
modeling results as a prescription for managing habitat either within
the Oregon Coast Range or elsewhere until other similar studies are
conducted.'' (Olson et al. 2004)
``I reiterate my concerns that interior older forest and
other landscape characteristics, rather than just amounts of older
forest, should be considered in developing optimal landscape
configurations (as was suggested in the Ecological Monograph). In
addition, my co-authors and I have repeatedly noted that the monograph
represents just a first approximation of these relationships, which
form the basis for future studies, but in itself should not be
considered definitive.'' (November 21, 2006 letter to Paul Phifer from
Dr. Alan Franklin).
Also attached is a letter from Dr. Olson to Congressman Inslee. Dr.
Olson identified five key areas where her work was misapplied in the
draft recovery plan by the recovery team noting ``...my general
impression with respect to the use of my research is that the Recovery
Team lacked an understanding of the methodologies used and deliberately
ignored warnings against using it to write management prescriptions.
Thus, the draft recovery plan contains a number of fatal flaws that
could allow habitat levels for the spotted owl to be managed at
unscientifically low levels at a time when the species is facing
multiple threats and an accelerated decline (Anthony et al. 2006). A
scientifically sound recovery plan would never recommend low habitat
levels at a time when the owl is facing multiple threats.
Issue #3: Dr. DellaSala asserted that the Washington Oversight
Committee directed the Recovery Team to rewrite the plan.
FWS response: The Oversight Committee, after reviewing the initial
draft, asked the Recovery Team to do three things: (1) reorganize how
the plan was presented in order to improve readability and emphasize
new science; they did not ask it to be substantively changed; (2)
address the barred owl threat more directly, as this threat was
assigned the highest recovery priority number by the recovery team--
while loss of habitat continues to be a concern, the original draft as
prepared by the recovery team included increased concern about the
impact of barred owls; however, when the Washington Oversight Committee
looked at the actions to address this threat, the actions did not
appear substantial; and (3) provide one or more options that provide
equal protection for the owl, but do not rely on static reserves.
In recognition of adaptive management principles and some of the
science presented in the 5-year review, the Committee asked if owl
reserves could be established at the local land manager level, either
range-wide or on a provincial basis. At no time did the Committee
provide specific direction to change any of the science, ask the
measures needed to recovery the owl be changed or diluted, nor did they
edit or write any portion of the document.
My response: The following are excerpts from recovery team meeting
notes and emails taken by or sent by the FWS reporting to the recovery
team on discussions with the Oversight Committee. These excerpts
demonstrate that the recovery team was directed by the Oversight
Committee in more substantial ways than FWS admits.
Source: October 18 ``Northern Spotted Owl Recovery Plan Options''
``Emphasize the new science indicating habitat
variability across the range, and de-emphasize the past''.
``..Note change of name from ``mapped'' to ``managed''
owl reserves
Eliminate the MOCA [Managed Owl Conservation Areas]
concept and instead establish provincial habitat targets.''
``We also need to do a ``reorganization and emphasis''
rewrite of the existing draft...'' [emphasis added].
Source: October 25, 2006 ``NSO Options'' (this direction was repeated
in an October 30, 2006 Northern Spotted Owl Recovery Plan
Options--Concept Paper)
``Option 2: flip and switch...Strengthens references to
flexibility for land management agencies''.
...and summarize the habitat threats discussion into less
than a page.
Revise how we reference the NWFP [Northwest Forest Plan]
throughout the document--and then eliminate reference to the NWFP''.
Source: January 12, 2007 email from Dave Wesley to the recovery team
``We just received new direction from Lynn Scarlett,
Deputy Secretary of the Interior concerning the NSO Recovery Plan. We
have been asked to provide 2 independent options of the Recovery
Plan... These options are to address the recent direction we received
from DC.''
``Here is our plan--the IST will ``delink'' Option 1 from
the combined draft as it exists now and review it to insure it
represents the Teams' best efforts as of September 29th...The IST will
also draft the provincial Option, Option 2..''
The following are summaries from recovery team meeting notes that I
took:
Ren Loehefner (10/17/06)--the Washington Oversight
Committee ''objected to: (1) mapped owl areas--too restrictive and too
much of a reserve system; (2) the emphasis on the NWFP and the 1992
draft final spotted owl recovery plan; (3) not enough actions on barred
owls; and (4) not enough flexibility.
Paul Phifer (12/15/06) ``the oversight committee has
decision-making authority and is telling the recovery team what they
want--this is a shift in our approach--we are being moved into an
advisory role.
In sum, the Oversight Committee directed the recovery team to: (1)
place the barred owl above habitat loss (e.g., by reducing the
discussion of habitat to a single page and--``flip and switch''--the
presentation of materials so barred owls are ranked higher than habitat
losses); (2) deemphasize past science and emphasize new science; (3)
delink the recovery plan from the NWFP; (4) develop an option that does
not depend on fixed reserves; (5) eliminate the MOCAs; and (6) change
``mapped owl conservation areas'' to ``managed'' owl conservation
areas. It should be noted that the September 29 draft submitted by the
recovery team to D.C. assigned equal priority to the barred owl and
ongoing habitat loss.
I have attached a letter from Dr. James Tate, Science Advisor to
the Office of the Secretary, Water and Science. Dr. Tate states ``the
draft recovery plan for the Northern Spotted Owl [NSO] is needlessly
bureaucratically complicated, and fails to address the basic biology of
the listed species and the threats to its survival or recovery....I
suggest that some of the other actions, especially those that related
to the habitat needs of the two species, deserve a much higher priority
than lethal control of BAOWL (barred owl--sic--emphasis added).''.
When this letter was discussed during a subsequent recovery team
conference call on January 18, 2007 the recovery team was instructed by
FWS to ignore it.
Issue #4: Dr. DellaSala asserted that the habitat criteria were
directed by the Washington Oversight Committee.
FWS response: In fact, the habitat criteria were established by the
Recovery Team, as described above and with which Dr. DellaSala agreed
(pending peer review as previously described). These criteria were
developed for both options. In fact, these habitat criteria were
developed before the initial plan was ever sent to the Washington
Oversight Committee. These criteria are very technical, and at no time
did the Washington office inquire about them.
My response: To clarify, nowhere in my May 9 testimony did I state,
or even imply, that the Oversight Committee directed adoption of
specific habitat criteria. However, as stated in my May 9, 2007
testimony to the Committee, the Washington Oversight Committee, and, in
particular, Deputy Interior Secretary Lynn Scarlett, directed the FWS
to ``start with newer science, how it works, de-emphasize the reference
to the NWFP (Source: October 27 meeting notes distributed to the
recovery team by FWS) and to ``summarize the habitat threats
discussion into less than a page'' (Source: November 15 recovery team
meeting notes--FWS). The so-called new science primarily included two
studies in the southern range of the owl misrepresented in the draft
recovery plan (see response #2 above). In addition, there were numerous
other new studies that the recovery plan omitted, including those
documenting the impacts of post-fire logging on forest structure and
ecosystem processes of importance to the owl (e.g., Beschta et al.
2004, Lindenmayer et al. 2004, Noss and Lindenmayer 2006) and others
demonstrating that habitat loss and barred owls are interrelated
[equivalent] threats to the spotted owl (Pierce et al. 2005). The 2007
draft owl recovery plan is a significant step backward from the 1992
draft owl recovery plan, which included much stronger restrictions on
post-fire logging.
Issue #5: Dr. DellaSala asserted that Dr. Lohoefener, Mr. Wesley and
Mr. Joyner after meeting with the oversight committee all
stated that the Forest Service and BLM were to receive special
treatment and were really in charge of the Recovery Plan.
FWS response: Mr. Joyner, Deputy Regional Forester of the U.S.
Forest Service in Portland responded to Dr. DellaSala. In his response
he states, ``I categorically deny making such a statement nor did I
imply that the oversight committee intended to reduce protection to the
Northern Spotted Owl, when the committee provide the guidance for
Option 2. In a broader context, I disagree with your general assertion
that the Forest Service and BLM exceeded an appropriate role in the
development of the recovery plan. [Letter from Calvin Joyner to Dr.
DellaSalla--sic--dated 5/8/07].'' Dr. Lohoefener and Mr. Wesley also
deny ever making statements indicating preferential treatment in
developing the recovery plan. Because recovery plans are only effective
if they are implemented, we did strive to develop a plan that was
responsive the ESA (sic) and would be useable by the U.S. Forest
Service and Bureau of Land Management, who manage the vast majority of
the land included in the recovery plan.
My response: For clarification, nowhere in my May 9 testimony did I
state that the Forest Service and BLM ``were really in charge of the
Recovery Plan.'' I merely stated that the land management agencies had
disproportionate influence as documented in both of my testimonies. As
an addendum to my May 9 testimony and in response to Mr. Joyner's
letter regarding my testimony, I submitted the following materials to
this Committee and resubmit them here again in support of my ongoing
concerns that the Forest Service and BLM inappropriately pressured the
FWS during the development of the recovery plan. These materials are
excerpts from recovery team meetings notes taken by FWS, an unsigned
memo from the Pacific Northwest Regional Forester and BLM State
Director (Oregon), and response emails from the FWS.
Source: January 12, 2007 email from Dave Wesley to the recovery team
``As there is a bit of ambiguity in these directions/questions
[i.e. from the oversight committee], the IST will be consulting with
the FS and BLM to ensure we address their concerns.''
Source: Draft Direction (unsigned) memo received on January 16, 2007
from BLM State Director (Oregon) and Forest Service Regional
Director (Portland) attached to a cover email from Paul Phifer.
``We appreciate the continued commitment and hard work of the
Recovery Team (RT). The Recovery Plan (RP) for the Northern Spotted Owl
(NSO) will identify and prioritize recovery actions to guide
monitoring, research, project planning and on-the-ground management
actions by the federal agencies and describe recovery goals to be
considered in developing future land use plans. The northwest forests
are dynamic systems that will change considerably over the 30 year
recovery period. Our knowledge of the Barred Owl, now the single
biggest threat to NSO recovery, will improve dramatically over the same
time.
Over the life of the RP, the BLM and U.S. Forest Service will
periodically revise the land use planning documents of the nineteen
National Forests and six BLM districts covered by the Northwest Forest
Plan (NWFP). The RP will provide long term goals for recovery, with
both short and long term recovery actions, but it must also provide a
reasonable level of flexibility to enable the agencies to continue to
adapt and revise land use plans based on new information and observed
results.
Therefore, we request the RT proceed as follows:
1. Fully develop Option 2 (province level rule set) independent of
Option 1. Use the Interagency Scientific Committee (ISC) report, the
1992 Draft Recovery Plan, and more recent peer reviewed scientific
publications, like the 10-Year Status Review, to develop the rule set.
Drop rule #1 that carries over the MOCA acres by province from Option 1
and clarify rule #5 that calls for ``as much high quality habitat as
possible.'' Clearly describe the goals and objectives of each rule so
the agencies can determine, in consultation with the FWS, how best to
achieve the goals and objectives of the RP while providing for other
goals identified in land use plans. The RP should place primary
emphasis on identifying the quality and characteristics (size and
spacing) of necessary habitat based on the best information available,
including historic occurrence data and describe objective, measurable
recovery criteria. Provide to the FWS a final draft by March 1, 2007
for public release by April 1, 2007.
2. Provide additional emphasis on actions to reduce the loss of
important NSO habitat by wildfires and to address the threat of Barred
Owls. To the extent possible, identify priority areas in need of
treatment and describe the goals of such treatments.
3. Rather than assume continued management of the federal lands
according to the NWFP, assume the federal agencies will continue to
manage federal lands per a land use plan which will be based, in part,
on the RP. Also, assume actions to implement federal land use plans
will be accompanied with either plan or project level consultations to
ensure management actions align with recovery goals.
4. As you prepare the RP, include applicable actions or strategies
from the NWFP as specific goals, objectives or recovery actions when
necessary to contribute to recovery, but de-link the action or strategy
from the NWFP and describe it in independent terms. Any element of the
12 year-old NWFP brought forward into the RP should be re-evaluated
based on current knowledge of threats to ensure continued
applicability. For federal lands outside the areas to be managed for
NSO, assume those lands will continue to represent habitat capable
acres. Though nesting, roosting, foraging and dispersal habitat will
continue to be available on federal lands outside the areas to be
managed for owls, and will continue to contribute to recovery, the
amount and locations of such habitats will vary over time based on
implementation of land use plans and naturally occurring events.
5. Recognizing that size and spacing of habitat blocks will be a
key element of any RP, a rule set that identifies either the minimum or
a reasonable range for each variable will provide both the most
flexibility and most responsive management direction. When a range of
values is provided, explain the basis for the values that define the
range.''
Source: January 25, 2007 response from Dave Wesley to the recovery
team
The following memo details a point-by-point account of how the FWS
incorporated direction from the Forest Service and BLM detailed in the
``draft direction'' above (only the relevant issues are cited here--the
reference to ``incorporated'' means it was included in the draft
recovery plan by FWS).
Fully develop Option 2 (emphasis added) (province level rule set)
independent of Option 1. Clearly describe the goals and objectives of
each rule so the agencies can determine, in consultation with the FWS,
how best to achieve the goals and objectives of the RP while providing
for other goals identified in land use plans.
A fully-developed, stand-alone Option 2 Recovery Plan has
been developed with a rule set for deriving habitat blocks that does
not include a lower acreage limit. The IST has added purpose statements
for each rule in the rule set.
The rule set has been modified to include a better
process for reaching an acceptable spatial extent by connecting most
habitat blocks with three other habitat blocks.
A new Recovery Action (now #35, both options) describing
the spotted owl needs on those lands between MOCAs/Habitat Blocks has
been created and incorporated into both options.
Rather than assume continued management of the federal lands
according to the NWFP (emphasis added), assume the federal agencies
will continue to manage federal lands per a land use plan which will be
based, in part, on the RP. Also, assume actions to implement federal
land use plans will be accompanied with either plan or project level
consultations to ensure management actions align with recovery goals.
Incorporated
As you prepare the RP, include applicable actions or strategies
from the NWFP as specific goals, objectives or recovery actions when
necessary to contribute to recovery, but de-link the action or strategy
from the NWFP (emphasis added) and describe it in independent terms.
Incorporated
Recognizing that size and spacing of habitat blocks will be a key
element of any RP, a rule set that identifies either the minimum
(emphasis added) or a reasonable range for each variable will provide
both the most flexibility and most responsive management direction.
When a range of values is provided, explain the basis for the values
that define the range.
Incorporated
Source: NSO Recovery Team Meeting October 26-27, 2006
Key Points
(1) ``The RT will attempt to draft a concept paper (see Draft
Concept Paper) for review by the oversight committee by December 15,
2006. The intent is to provide some useful information to the BLM's
Western Oregon Plan Revision process (emphasis added).''
* Note--the above incorporation of direction from the Forest
Service and BLM by FWS is significant as it led to creation of Option 2
and the emphasis in the recovery plan on de-linking from the NWFP. By
de-linking from the NWFP, BLM, in particular, can begin eliminating
reserves created for the owl under the NWFP as part of its WOPR. Option
2 was not a product of the recovery team but was an outcome of
direction received from the Washington Oversight Committee acting
through direction from the Forest Service and BLM.
Issue #6: Dr. DellaSala asserted that the recovery plan includes
habitat protection strategies that are less than those
currently afforded the owl under the Northwest Forest Plan
FWS response: The Northwest Forest Plan included provisions for
hundreds of species other than the northern spotted owl and did not
contain the specific criteria and recovery actions and recommendations
for the owl included in the recovery plan. Nothing in the recovery plan
changes the Northwest Forest Plan and nothing in the recovery plan
changes the full protection the owl receives under the ESA.
My response: From the draft direction memo cited in issue #5--
``Rather than assume continued management of the federal lands
according to the NWFP, assume the federal agencies will continue to
manage federal lands per a land use plan which will be based, in part,
on the RP. Also, assume actions to implement federal land use plans
will be accompanied with either plan or project level consultations to
ensure management actions align with recovery goals.''
By de-linking the 2007 draft owl recovery plan (Option 2) from the
NWFP, the FWS proposes a recovery plan with lower levels of habitat
protections for the owl than the NWFP, which has been recognized as the
bare minimum for the owl by the courts. Based on the best available
science, however, as well as core Endangered Species Act (ESA)
principles for species protection and recovery, the habitat provisions
of the NWFP are a ``floor'' or starting point for any legally adequate
spotted owl recovery plan. While some parts of the NWFP also benefit
other late-successional species, the ecological assessment of the plan
(FEMAT) never considered the parts of the NWFP inseparable. Nor did it
indicate which parts could be omitted or reduced and still attain a
viability rating for the owl. Greater protection of the owl and its
habitat is almost surely needed to provide adequate regulatory
assurances for recovering the owl.
Finally, by de-linking the draft owl recovery plan from the NWFP,
the recovery plan has opened the door for the Forest Service and BLM to
increase logging of old-growth forests in response to the ``global
settlement agreement'' with the timber industry as detailed in my May 9
testimony. The draft owl recovery plan is especially significant to the
timber settlement agreement as federal agencies will cite the recovery
plan during Section 7 consultations involving forest plan revisions
(such as the WOPR).
Issue #7: Dr. DellaSala asserted that the Washington Office oversight
on this plan was inappropriate and interfered with science.
FWS response: The northern spotted owl has been a controversial
species since before its listing in 1990. Because of the possibility of
the species having a huge effect on the economy of the region, it is
reasonable Administrations (sic) to have interest in how this resource
issue is addressed. In the early 1990s, both the President and Vice
President of the United States were directly involved in dealing with
this issue. The current political appointees in the Department actively
reviewed the recovery plan and suggested that the team explore
management alternatives. This review was not unusual or inappropriate,
as no factual information was changed or asked to be changed. At no
time did the oversight team interfere with the underlying science of
the recovery plan, or ask that any changes be made to that underlying
science. The team: 1) asked that the recovery plan document be
reorganized for greater clarity and readability; 2) asked if the team,
which identified the barred owl as a threat to the spotted owl, had any
measures to suggest in order to address that threat; and 3) asked if
the team, while maintaining the recovery management option in the first
draft, could also develop any other options based on adaptive
management and performance measures. The team indicated that the
initially proposed option was just one possible management option and
that they believed it was possible to develop an additional option for
consideration and review by the public.
My response: President Clinton directed federal agencies to develop
a forest plan that was ``scientifically sound, ecologically credible,
and legally responsible.'' The President did this in an open and
transparent manner that included the public and scientists at the
Forest Conference in Portland and also assembled a team of nationally
recognized scientists known as the Forest Ecosystem Management
Assessment Team (FEMAT). The NWFP, in particular, was developed in
response to Judge Dwyer's 1991 ruling that previous management of
federal lands was inadequate to maintain the viability of the owl and
hundreds of species associated with old-growth forests in the Pacific
Northwest. In contrast, the process used by the Bush Administration to
develop the draft spotted owl recovery plan was neither transparent nor
based on the best available science as developed by career agency
biologists and independent owl scientists. Our recovery team did not
include any of the well recognized, independent owl scientists.
Further, on February 7, 2007, Mr. Loehefner instructed the recovery
team to ``don't spend any more time on Option 1, the majority opinion
of the oversight committee is they prefer Option 2 (source--my meeting
notes--emphasis added). Additional direction from the Oversight
Committee included a ``reorganization and emphasis'' rewrite of the
September 29 draft (see above), which resulted in inappropriately
placing the barred owl above habitat loss and the development of
scientifically unsound habitat provisions and recovery plan options.
This occurred while the recovery team's decision making process shifted
from consensus to responding to direction from the Oversight Committee.
FWS's assertion that the Oversight Committee merely ``asked if the
[recovery] team...could also develop any other options based on
adaptive management and performance measures'' is false. The recovery
team was informed that a non-reserve-based option would be included in
the plan, with or without the cooperation of the recovery team.
Furthermore the statement ``the team indicated that the initially
proposed option was just one possible management option and that they
believed it was possible to develop an additional option'' is also
incorrect. The majority of the recovery team objected to the heavy-
handed interference by the Oversight Committee. That is the primary
reason the recovery team was demoted to a poorly-defined ``advisory''
role. Option 2 was entirely a product of the Oversight Committee and
the IST. The recovery team instead was asked to develop performance
measures to evaluate Option 2. This option would never have existed if
the recovery team had been allowed to work independently.
While FWS has assumed protections for endangered species like the
owl are likely to have a ``huge effect on the economy of the region,''
the agency exaggerates this effect. Widespread economic losses were
initially predicted as a result of federal reductions in timber
harvests, however, the regional economy actually expanded in the decade
or so since the NWFP (Niemi et al. 1999a, Power 2006). This is because
the economic importance of timber in the Northwest diminished markedly
due to many factors, and the regional economy shifted and diversified
due, in part, to the many outdoor amenities, clean water, and regional
beauty that serve to attract new businesses. FWS has consistently
relied on biased economic loss estimators that do not include economic
benefits associated with natural resource protections in general
(Southwick Associates 2000) and with protecting natural resources that
the public holds in high regard such as salmon (Niemi et al. 1999b),
presenting one-sided arguments and worse case scenarios.
Issue #8: Dr. DellaSala cites a quotation attributed to Mr. Wesley,
published in the Land Letter stating ``...the less-defined
second option was requested by Interior Department political
appointees and other high-level official in Washington, D.C.''
FWS response: Although the entire quote is not shown, nor is there
any context to the quote, it is essentially accurate that the oversight
team requested that the recovery team see if it were possible to
develop a second option based on the principles of adaptive management.
There is nothing in this quote to indicate the option was less
biologically sound, or that the Washington committee asked the Recovery
Team to reduce protection for the owl or abdicate their responsibility
to use the best available science. Both options rely entirely on the
same underlying science and the same recovery objectives and criteria.
My response: The conservation foundation of the NWFP, which is
rooted in fixed reserves, is broadly supported in the scientific
literature (see Courtney et al. 2004, Thomas et al. 2006, DellaSala and
Williams 2006 for reviews). In a five-year status review of the owl,
researchers (Courtney et al. 2004) concluded that there was no reason
to depart from the NWFP and that the situation for the spotted owl
would be bleaker today if not for the NWFP. During a July 12, 2006
recovery team conference call with several well-respected owl
scientists (Drs. Robert Anthony, Rocky Gutierrez, Alan Franklin, Barry
Noon), the scientists stated that (1) the fixed reserves of the NWFP
were the best plan for the owl at this time; (2) the foundation of the
NWFP reserves has yet to be proven false; and (3) maintaining the fixed
reserves of the NWFP is critical to the owl's recovery (my personal
meeting notes). The draft recovery plan for the owl (page 59) states
that the conservation reserve strategy under the NWFP was based on
sound scientific principles that have not substantially changed since
the species was listed. Yet it does a complete reversal by proposing
Option 2, which includes non-fixed reserve approaches that have neither
been modeled nor tested. It should be noted that Judge Dwyer in 1994
determined that the NWFP was both the backbone to owl viability
throughout the region and the bare minimum necessary to satisfy the
viability requirements of the National Forest Management Act (NFMA).
Both options (and especially Option 2) would drop habitat levels below
the bare minimums of the NWFP and in doing so do not meet either the
viability provisions of NFMA or, more to the point, the recovery plan
standards of the ESA pertaining to best available science. In a related
decision, FWS recently proposed to exempt 1.5 million acres of owl
critical habitat from protections. As a scientist, I know of no science
that would recommend lower habitat levels at a time when the species
faces multiple threats and is declining precipitously (Anthony et al.
2006). Consequently, the draft owl recovery plan departs significantly
from the habitat protections afforded the owl under the NWFP.
Closing Remarks and Recommendations
I have provided the Committee with excerpts of emails and recovery
team meetings notes from the FWS supplemented with letters and quoted
statements from well-respected scientists, the administration's own
science advisor, and personal meeting notes from recovery team
meetings. In spite of my many misgivings about the recovery plan, I
have remained a member of the recovery team primarily to ensure that
the peer review now underway is responded to openly by FWS and to
daylight the political interference with the draft owl recovery plan.
Recovery plans are meant to provide guidance to move a listed species
to a future where the protections of the ESA are no longer warranted.
They are linked to delisting decisions and agency consultations and
therefore are required to be based on the best available science.
Unfortunately, the draft recovery plan includes numerous scientific
flaws, key misrepresentations and omissions of science, and avoidance
of warnings from owl scientists and the administration's own science
advisor. The process by which the draft recovery plan was handled by
FWS has eroded the public's confidence in the ability of the agency to
meets its obligation to protect the nation's threatened and endangered
wildlife.
The draft owl recovery plan is already being used by federal
agencies in related, proposed forest management decisions, including an
equally flawed proposed critical habitat determination for the owl and
a soon-to-be released BLM WOPR. These pending decisions are
collectively tied to the global timber settlement agreement designed to
weaken protections for old-growth forests strongly supported by the
public. Consequently, I recommend the following remedial actions be
taken by Congress:
Investigate the influence of the global timber settlement
agreement on the draft owl recovery plan, proposed critical habitat
determination for the owl, BLM WOPR, and other related forest policy
rollbacks (e.g., Survey and Manage and Aquatic Conservation Strategy of
the NWFP).
Place the spotted owl recovery plan and related decisions
(e.g., critical habitat, BLM WOPR) on hold and convene a panel of
independent scientists to redo the draft owl recovery plan.
Request that the Interior Inspector General, the
Government Accountability Office, or the Justice Department's Division
of Natural Resources (public integrity section) conduct an
investigation into the entire decision chain involved in the draft owl
recovery plan and its relation to the global timber settlement
agreement in driving the forest planning decisions of this
administration.
Oversee the soon-to-be completed peer review of the draft
recovery plan and how FWS responds to it. Given the pattern of
political interference in this recovery plan, a credible peer review
should be part of the ethical changes and department reviews recently
initiated by Secretary Kempthorne.
Thank you again for allowing me to submit this testimony into the
congressional record.
Literature Cited
Anthony, R.G. and several others. Status and trends in demography of
Northern Spotted Owls. Wildlife Monographs 163. 48 pp.
Beschta, R., J.J. Rhodes, J.B. Kauffman, R. E. Greswell, G.W. Minshall,
J.R. Karr, D.A. Perry, F.R. Hauer, and C.A. Frissell. 2004.
Postfire management on forested public lands of the western
United States. Conservation Biology 18(4):957-967.
Courtney, S.P., J.A. Blakesley, R.E. Bigley, M.L. Cody, J.P. Dumbacher,
R.L. Fleischer, A.B. Franklin, J.F., R.J. Gutierrez, J.M.
Marzluff, and L. Sztukowski (eds). 2004. Scientific evaluation
of the status of the Northern Spotted Owl. Sustainable
Ecosystems Institute, Portland, OR.
DellaSala, D. A., and J. Williams. 2006. Northwest Forest Plan Ten
Years Later--how far have we come and where are we going?
Conservation Biology 20:274-276.
Franklin, A.B., D.R. Anderson, R.J. Gutierrez, and K.P. Burnham. 2000.
Climate, habitat quality, and fitness in Northern Spotted Owl
populations in northwestern California. Ecological Monographs
70:539-590.
Lindenmayer, D.B., D.R. Foster, J.F. Franklin, M.L. Hunter, R.F. Noss,
F.A. Schmiegelow, and D. Perry. 2004. Salvage harvest policies
after natural disturbance. Science 303:1303
Niemi, E., E. Whitelaw, and A. Johnston. 1999a. The sky did not fall:
the Pacific Northwest's response to logging reductions.
ECONorthwest, Eugene, OR.
Niemi, E., E. Whitelaw, M. Gall, and A. Fifield. 1999b. Salmon, timber,
and the economy. ECONorthwest, Eugene, OR.
Noss, R.F., and D. B. Lindenmayer. 2006. Special section: the
ecological effects of salvage logging after natural fire.
Conservation Biology 20(4):946-948.
Olson, G.S., and several others. 2004. Modeling demographic performance
of Northern Spotted Owls relative to forest habitat in Oregon.
J. Wildlife Management 68:1039-1063.
Pierce, D.J., J. B. Buchanan, B. L. Cosentino, and S. Snyder. 2005. An
assessment of the status of Spotted Owl habitat on non-federal
lands in Washington between 1996 and 2004. Washington
Department of Fish and Wildlife, Olympia, Washington, USA.
164p.
Power, T.M. 2006. Public timber supply, market adjustments, and local
economies: economic assumptions of the Northwest Forest Plan.
Conservation Biology 20:341-350.
Southwick Associates. 2000. Historical economic performance of Oregon
and Western Counties associated with roadless and wilderness
areas. Southwick Associates, Frenandina Beach, FL.
Thomas, J.W., J.F. Franklin, J. Gordon, and K.N. Johnson. 2006. The
Northwest Forest Plan: origins, components, implementation,
experience, and suggestions for change. Conservation Biology
20:277-286.
______
[The letter of Gail S. Olson, Ph.D., submitted for the
record by Dr. DellaSala follows:]
May 16, 2007
The Honorable Jay Inslee
U.S. House of Representatives
Washington, D.C.
Dear Congressman Inslee:
I am a wildlife biologist who has conducted research on the
relationships between Northern Spotted Owls and their habitat for the
past 8 years. I (along with 6 co-authors) published a paper on some of
the results of that research in the Journal of Wildlife Management in
2004 and it has been cited several times in the draft Northern Spotted
Owl Recovery Plan. Specifically, results published in my paper have
been used to support the habitat provisions for both Options 1 and 2 in
the Plan. I strongly believe this to be at least a misinterpretation of
my research results and at worst deliberate misuse.
One of the key findings described in the paper was that a mixture
of older forest and young or non-forest was positively associated with
owl survival and reproductive output within one study area in the
Oregon Coast Range. We anticipated the temptation to use this
information to write habitat prescriptions when we discussed the
``Management Implications'' of the research. On p. 1052 of Olson et al.
(2004), we stated: ``...we do not recommend that forest managers use
our modeling results as a prescription for managing habitat either
within the Oregon Coast Range or elsewhere...''. This statement is
alluded to within the Recovery Plan (p. 36) and the claim is made that
these results were used only to establish de-listing guidelines and not
to set management prescriptions. However, it is difficult to imagine
that delisting criteria and habitat prescriptions can be completely de-
linked, and the rest of the Plan as written does not appear to separate
the two concepts.
Therefore, I believe it is reasonable to assume that my research
results were used to set habitat provisions in the Plan. Therefore, I
believe it is important to reiterate the reasons why we made that
statement in the paper.
1. The amount of variation explained by the models is low. That
means that the habitat variables that we examined are not strong
predictors of owl population parameters (survival and reproductive
output). Many other factors likely have an influence, including habitat
components not examined in this study.
2. The habitat variables we used in the study were assessed by
transcribing aerial photography images. Errors in this process may
misrepresent the amounts of certain habitat types.
3. Our results may reflect unique conditions within our study area
and may not be representative of other areas. Replication of this study
in other areas is necessary to determine whether our results were
typical or anomalous.
In addition to these general caveats, I've identified at least 5
key areas where the results of my research were misapplied within the
Plan.
1. Definition of owl habitat. The habitat variables used in our
analyses were not the same as those that will be used in measuring
``habitat-capable'' acres in the provisions within the Plan. Although
there may be some overlap in the definitions, no effort was made to
determine what this overlap is. Therefore, specific values from my
research may translate to entirely different values of the habitat
definitions used in the Plan.
2. Scope of analyses and scale of measurement. Our research was
conducted within a study area known to be historically inhabited by
spotted owls. The aim of our study was to see if we could determine
differences in owl demographic performance within this area based on
the habitat in the area immediately surrounding owl nest trees and
activity centers (owl territories). Thus our study only assessed
habitat at a relatively small scale and not across entire landscapes.
To infer that the same pattern of habitat found within 1500m of owl
territory centers can be applied to landscapes as a whole requires
additional assumptions that are certainly not supported by my research
and also is contrary to what most ecologists believe about the
importance of scale in studying wildlife-habitat relationships.
3. Misinterpretation of habitat fitness potential. The Plan bases
much of its support for the habitat provisions on a measure called
``habitat fitness potential'', which was developed by Franklin et al
(2000) as a means of combining the affects of habitat on owl survival
and productivity into a single measurement. Because they used a common
population modeling method based on a projection matrix, they used the
symbol lh as short-hand notation to represent habitat
fitness potential. This likely has led to confusion and the assumption
that this measurement can be equated to the more widely used l which is
a population projection measure used to measure population trends in
northern spotted owls (c.f. Anthony et al. 2006). In general, values of
l indicate whether a population is increasing (l>1.0), decreasing
(l<1.0), or stable (l=1.0). However, values of lh cannot be
similarly interpreted because they are based on animals already
recruited into the population. They are also idealized values based on
the assumption that the models used to estimate the survival and
reproductive output parameters used to calculate habitat fitness
potential are accurate. They are NOT based on direct analyses of the
data collected from spotted owls within those individual territories.
4. Appendix D. The most obvious example of poor use of science in
the Plan is found in Appendix D, which purports to describe what
habitat fitness potential is and it does nothing of the sort. First,
there is no information on how habitat fitness potential is calculated,
which is necessary for any understanding of what it is. Second, the
analyses presented to determine the province-specific habitat threshold
values are completely ad hoc. The ``limited data set'' attributed to
the Olson et al. (2004) paper consisted of 6 data points where were
intended as visual examples only, and no data were provided on specific
habitat values within the paper. Thus they were estimated from a figure
(Figure 5) that was never intended to be used in such a way. The graph
in Figure D.2. is not of the true relationship between lh
and the habitat variable, which can be calculated directly because
lh was computed based on a formula containing habitat
values. Even the analysis based on Figure D.3., which is supposedly
taken directly from the Olson et al (2004) Figure 2 is incorrect in
that it does not accurately estimate the maximum value, which is known.
In general, none of the analyses in Appendix D that relate to Olson et
al. (2004) were necessary or appropriate.
5. Lack of uncertainty measures. It is a major tenet of modern
scientific analyses that the uncertainty of estimates be reported so
that the results can be properly interpreted. Estimates are commonly
given with confidence intervals or other measures of variance. The Plan
repeatedly ignores such uncertainty and does not consider how such
uncertainty may affect the recommendations of the Plan.
In summary, my general impression with respect to the use of my
research is that the Recovery Team lacked an understanding of the
methodologies used and deliberately ignored warnings against using it
to write management prescriptions. I was never asked to answer
questions regarding either the methodology nor the recommendations,
which further leads me to believe that clarity on these issues was not
desired. I hope this letter provides some of this clarity and sets the
record straight on what can and cannot be inferred from my research.
Sincerely,
Gail S. Olson, PhD.
______
[The comments of Dr. James Tate submitted for the record by
Dr. DellaSala follow:]
FROM JIM TATE (DOI Secretary Science Advisor) received from Paul
Phiffer 1/16/07:
Comments on: 2006 Draft Recovery Plan for the Northern Spotted Owl
(Strix occidentalis caurina)
The draft recovery plan for the Northern Spotted Owl [NSO] is
needlessly bureaucratically complicated, and fails to address the basic
biology of the listed species and the threats to its survival or
recovery. The recovery team [team] has stated that the Barred Owl
[BAOW] range expansion and competition with the NSO is the primary
factor that needs to be addressed. The team also states that there is
incomplete information on the habitat needs of the two species
involved, or the habitat management options available.
As a result, the team highly recommends lethal control of the BAOW
as the primary action to be taken by the government at a cost of about
$100M over 30 years. The team also proposes 39 secondary...``actions
that address overall habitat recovery through maintenance and
restoration, monitoring of avian diseases, existing regulatory
mechanisms, development and implementation of a delisting monitoring
plan, management of spotted owl populations and distribution, and
management of the barred owl.'' I suggest that some of the other
actions, especially those that relate to the habitat needs of the two
species, deserve a much higher priority than lethal control of BAOW.
If the recovery goal for the NSO is...``to recover the spotted owl
such that it can be removed from the list of threatened or endangered
species,'' then I suggest that an ongoing and costly BAOW control
program of the will not work except possibly in the short term. It is
evident to me that nothing meaningful will be accomplished until the
recovery team has some rough idea of:
1. the habitat needs of the BAOW that are now present in the range
of the NSO, but were not there previously,
2. the habitat needs of the NSO that are unacceptable to the BAOW,
3. the changes that have occurred in the habitats of the Pacific
Northwest, and
4. a recovery plan that manages the habitat for long-term
persistence of the NSO.
It has been suggested that the government should seek a precedent
case where a non-listed species which had increased its range had to be
controlled for the sake of a listed species. An example was suggested
in the case of the Raven and the Desert Tortoise [DTORT] (see:
www.werc.usgs.gov/sandiego/pdfs/Shoot%20EA%20
&%20ROD-1994.pdf). This example may meet the criteria of control of a
non-listed species on behalf of a listed species, but it also created a
firestorm of controversy, and failed to take into account the reasons
for the range expansion of the Raven (see: http://www.nwf.org/
nationalwildlife/article.cfm?issueID=23&articleID=201).
I predict the firestorm of controversy that will be created by a
proposal to control BAOWs will be many times greater than the one
created by proposed control of the raven. If, during the efforts to
control Ravens, there was an adaptive management element to the
program, the BLM in concert with the USGS should evaluate its
effectiveness in reaching the goal of increasing survival of DTORT
juveniles. Lessons learned from the Raven/DTORT experience can help
guide our actions in the case of the NSO/BAOW.
In summary, I suggest--
1. A re-focus on the habitat requirements of the NSO and its
competitor the BAOW and learn how to manage habitat that favors
sustainable recovery of the NSO. The cost of the appropriate research
and field tests to do this might well cost less than the current
projected costs. Some of this research has already started in Canada.
2. If there is a need for lethal control of BAOW, a review should
be made of the effectiveness of lethal control in the long-term
survival of the listed species in previous cases where such actions
were taken (ex. Raven/DTORT). Such a review can guide better policy
decisions.
James Tate, Jr., Ph.D., Science Advisor
Office of the Secretary, Water and Science
1849 C Street NW, 2649 MIB
Washington, D.C. 20240
202 208-4693
202 841-2056 cell
202 208-3795 fax
jim_tate@ios.doi.gov
______
[A letter submitted for the record by Josh Pollock,
Conservation Director, Center for Native Ecosystems, follows:]
Center for Native Ecosystems
1536 Wynkoop, Suite 302
Denver, Colorado 80202
303.546.0214 fax: 303.825.2403
cne@nativeecosystems.org
www.nativeecosystems.org
August 6, 2007
The Honorable Nick J. Rahall II
Chairman
House Committee on Natural Resources
Washington, DC 20515
Congressman Rahall,
On July 31st, the House Committee on Natural Resources held a full
committee oversight hearing. Enclosed please find three documents
related to the status of the Threatened species Preble's meadow jumping
mouse, a subject which was injected into the Committee hearing by
Representative Doug Lamborn when he submitted two documents for the
record related to the Preble's mouse.
The July 31st Full Committee Oversight Hearing was titled ``Crisis
of Confidence: The Political Influence of the Bush Administration on
Agency Science and Decision-Making'' and was the second hearing during
this session on the subject of political manipulation of endangered
species science. At this hearing, Representative Doug Lamborn of
Colorado introduced for the record a letter to Secretary of the
Interior Dirk Kempthorne from Senator Wayne Allard of Colorado and a
written statement from Rob Ramey, who has conducted research on the
genetics of the Preble's meadow jumping mouse. Though this species was
not the topic of the hearing and the attempt to offer it as an example
of the sort of political manipulation of endangered species science the
Committee is investigating was inappropriate, now that the
Congressional record relating to this hearing includes these two
documents, we believe that a few other relevant documents should be
included as well, to ensure accuracy to the record relating to the
Preble's meadow jumping mouse and to restore balance to the version of
events presented in the testimony of Rob Ramey and the letter from
Senator Allard.
Both Ramey's testimony and the Senator's letter to the Interior
Secretary present an inaccurate and incomplete version of the past
research into the genetic status of the Preble's meadow jumping mouse.
After Mr. Ramey announced the results of his own study, an independent
study was published by researchers in the Biological Resources Division
of the U.S. Geological Survey (see the enclosed ``King et al. 2006'').
This study confirmed earlier taxonomic classification of the Preble's
meadow jumping mouse as a distinct subspecies and refuted Ramey's
conclusions (in particular, I draw your attention to remarks in the
conclusion to the paper). Subsequently, an independent review panel was
commissioned by the U.S. Fish and Wildlife Service to evaluate the
conflicting claims regarding the genetic status of the mouse. This
panel concluded that all available data still supported the original
taxonomic designation of the Preble's meadow jumping mouse as a
distinct subspecies (see both the enclosed ``Prebles SEI report'' and
``Highlights SEI panel report'' documents). More disturbingly, the
panel found evidence of likely contamination of the samples Ramey used
for his genetic analysis.
The documents relating to these significant refutations of Ramey's
claims about the status of the Preble's meadow jumping mouse present a
markedly different picture than the one-sided version of events Ramey
offers in his testimony submitted to the Natural Resources Committee.
They deserve to be included in the record to ensure an appropriately
balanced view of the situation surrounding scientific research on the
Preble's meadow jumping mouse for anyone referring to the record in the
future.
Therefore, we respectfully asked that the three enclosed documents
be included. Thank you for your consideration.
Respectfully,
Josh Pollock
Conservation Director
Enc.
______
Highlights: Sustainable Ecosystems Institute's Evaluation of Scientific
Information Regarding Preble's Meadow Jumping Mouse
The panel finds that the Preble's meadow jumping mouse should be
retained as a valid subspecies.
p. 4 2: ``Overall, the panel concludes that the available data
are broadly consistent with the current taxonomic status of Z. h.
preblei and that no evidence has been presented that critically
challenges that status.''
The panel finds that the Preble's meadow jumping mouse is
geographically isolated.
p. 34 2: ``Gaps in geographic sampling also correspond to ACTUAL
gaps in the current geographical distribution. For example, in our
panel meetings, Drs. Ramey and King both pointed out that there are
actual gaps in the distribution of Z. hudsonius between Z. h. preblei
and Z. h. luteus in the south and between Z. h. preblei and Z. h.
campestris to the north (160km gap between the latter two subspecies).
Thus, Z. h. preblei is geographically isolated from other named
subspecies.''
The panel finds obvious signs of contamination in Ramey's
mitochondrial DNA sequence data for specimens he claimed showed
shared DNA patterns across subspecies.
The panel examined the original chromatograms for museum specimens
that Ramey claimed had DNA patterns associated with other subspecies,
but for which King found patterns consistent with the labeled
subspecies. A DNA sequence is made up of individual nucleotides, and a
chromatogram shows the chemical signal for each nucleotide in the
sequence. The panel found two sets of signals in several of the Ramey
chromatograms, indicating that there were two sets of DNA in a given
sample, but Ramey used these sequences anyway.
p. 26 3: ``Many pairs of equal-height peaks were called
decisively by REA [Ramey et al.] whereas we could not resolve the
ambiguity. There was only 1 read from REA for this sample.'' in other
words, even when the presence of 2 sets of chemical signals was
obvious, Ramey did not bother to check his work.
p. 27 2: ``In summary we reexamined the chromatograms from the 15
museum specimens that were sequenced by both labs and that were cited
by REA as providing evidence for shared haplotypes among subspecies.
Eleven of the REA sequences were based on single reads. All KEA [King
et al.] sequences were based on at least 1 read in both directions (3-
13 reads total). None of the KEA data sets show clear evidence of more
than one haplotype for any specimen....In 2 of the 3 cases of multiple
haplotypes being detected in the REA data, the residual sequence is
identical or very similar to the sequence acquired by KEA from the same
specimens.''
When the contaminated sequences are removed, Ramey's mitochondrial DNA
results mirror King's--Preble's mouse genetic patterns are
unique.
p. 32 2: ``Based on the available data, it is the panel's
conclusion that there is no reliable evidence for any shared haplotypes
between Z. h. preblei and any of the other subspecies at this time.
There is evidence for contamination of several key sequences reported
by REA, raising concerns about the remaining sequences that have only
single reads. If these conflicting mtDNA sequences are simply removed
from consideration, the two studies would largely agree...''
The panel finds Ramey's criteria for subspecies delineation
inappropriate.
p. 35 1: ``For example, REA used two critical tests of uniqueness
for subspecies and historic genetic exchangeability....These criteria
were criticized extensively by KEA as well as by some reviewers. The
panel feels that neither of these are critical tests of genetic
exchangeability.''
p. 39 1: ``Because Z. h. preblei is a formally described, valid,
and commonly recognized taxon, we concluded that the burden of proof
should lie in clearly showing that its taxonomic status is not
warranted...This is the approach taken by KEA; their null hypotheses
view Z. h. preblei as a distinct, formally named taxon, and they
therefore require clear evidence of genetic interchange to reject that
null hypothesis. REA take the opposite approach...''
p. 40 3: ``REA and Wehausen and Ramey (2000) consider subspecies
to be distinguishable if 90% of specimens could be correctly
classified to subspecies in LDA with jackknifed posterior probabilities
95%. As noted earlier, this is a high standard (although we do not
claim that it is unjustifiable) without evidence that it has been
widely accepted. Wehausen and Ramey (2000) do not cite a source or
justification for this standard and their paper has been cited only 2
times by other authors. We question whether it is appropriate to
introduce a relatively strict new convention in as contentious a test
case as this one.''
The panel finds that none of Ramey's four lines of evidence for
removing subspecies status for the Preble's meadow jumping
mouse are strongly supported.
p. 3 2: ``The panel concluded that two of the lines of evidence
presented by REA (their analyses of cranial morphometrics and
ecological exchangeability) are based on insufficient data to support
their suggestions for taxonomic change.''
re mitochondrial DNA: p. 42 2: ``Based on the data at hand, there
is no reliable evidence of any haplotype sharing. Thus, the available
data suggests the Z. h. preblei is distinct and diagnosable based on
the combined control region and cytochrome b haplotypes.''
re microsatellites: p. 43: ``Thus both datasets (including the
smaller dataset of REA) recovered support for a distinct Z. h. preblei.
Again the key difference in the conclusion is that REA interpret this
as 'recent' genetic exchangeability (i.e., biologically insignificant)
while KEA interpret this as 'historic' genetic exchangeability (i.e.,
biologically significant)....If other independent data (i.e.,
morphological, behavioral, mitochondrial DNA, climatic data, presence
of a clear geographic split, etc.) suggest similar or identical
groupings, then these microsatellite data offer strong support that
these groups are evolutionarily significant (sensu Avise and Ball
1990)....We find that mitochondrial DNA do support the significant
clustering of Z. h. preblei groups, and so these two datasets
corroborate the distinctiveness of Z. h. preblei.''
______
[NOTE: The ``Prebles SEI report'' and ``King et al. 2006''
documents submitted for the record by Mr. Pollack have been retained in
the Committee's official files.]
[The statement submitted for the record by Julie Kay
Smithson, Property Rights and Resource Utilization/Resource
Providing Researcher, London, Ohio, follows:]
Statement submitted for the record by Julie Kay Smithson,
property rights and resource utilization/resource providing researcher
I request that copies of my testimony be distributed to all members
of the House Resources Committee and any members of the media or
attendees that may desire a copy.
The hearing on Tuesday, July 31, 2007, targets administration
misdeeds relating to natural resources and natural resource policy.
Chairman Rahall and members of this Committee, it is safe to say
that every action of government is, by nature, political. Just as
townships, counties, etc., have political boundaries, the running of
government must be considered, at all levels, to be political. Every
administration and its agencies are political, from creation to
activities.
This is why people, for whom government is supposed to exist, must
remain ever-vigilant to the workings of government. Such a creature as
government is also a parasite, existing by feeding upon its host, the
taxpayer. How much lifeblood can be siphoned from the host before the
parasite, grossly engorged and misshapen, must be disengaged?
The very subject of today's Oversight Hearing, while not mentioned
directly, is this bloated condition imposed upon Americans, as host, by
government, as parasite. Government will do almost anything in order to
remain attached to us, its host.
The paradox that appears is when agencies begin acting in such a
way as to actually 'invent'--or 'reinvent'--science. How many agency
employees are actual experts in their fields? How can ``decision-
making,'' by any administration or the various and sundry agencies of
government, be based on science when the survival, or ``job security,''
of its employees, depend on keeping the paychecks coming? This is
something neither specific nor original to the current administration.
This includes the very public and should-be-humiliating hoax of the
``endangered'' lynx and its hairs, which were surreptitiously removed
from a taxidermied specimen and placed in certain areas in order to
make it appear that the lynx had ``habitat'' in those places and needed
a governmental ``helping hand'' to ``recover.''
Gentlemen and ladies, your focus today is on alleged ``political
influence'' on ``agency science'' and ``decision-making.'' Would it not
be more proper and accurate to pull in your collective horns and
refocus on what ``makes the news'' and impacts your host in ways that
are not only detrimental, but also of grave danger?
Such a focus would zero in on the ``over the top'' conflagrations
that burn each year with greater intensity, inflicting greater real
risk upon the natural resources with which you are charged to oversee.
It would also focus on the lame-at-best ``science'' driven by such
``environmental'' organizations like The Nature Conservancy, Sierra
Club, Audubon Society, Center for Biological Diversity, and others that
appear to be at the wheel of this runaway locomotive bent upon the
control of all resources, including the resource that is Property--even
if that resource must be burnt to a crisp or non-maintained for the
health of both it and all those impacted by it. I reference the hoaxes
that are ``invasive species,'' ``native species,'' ``non-native
species,'' ``exotic species,'' et al, ad nauseam. As long as birds fly,
i.e., migrate, and animals travel, i.e., migrate, there will be
movement of species. This includes the seeds d plants and animals that
are naturally carried by weather, seasonal changes, etc. Mankind has
had an impact on these, certainly, but it has been a positive and
beneficial impact.
Witness the incredible number of new species and subspecies of
horses, dogs, cattle, cats, and so many more! Why, people have been
practicing ``diversity'' for lo! Many years before any
``environmentalist'' or ``conservationalist'' invented a lock-up
``definition'' for diversity! Look at the human diversity here in
America!
Should the members of this Committee have further questions, I will
be delighted to enjoin conversations based upon my research and sound
science, both of which this Committee appears in dire need. In the
meantime, my suggestion is that you adjourn this Oversight Hearing,
admitting that its very basis is faulty and unnecessary, but decidedly
political!
My testimony concludes with this caution, spoken by one wise in the
ways of government: ``A government big enough to give you everything
you want is big enough to take everything you have.''--Attributed to
Barry Goldwater.
Julie Kay Smithson, property rights and resource utilization /
resource providing researcher
213 Thorn Locust Lane, London, Ohio 43140
propertyrights@earthlink.net
740-857-1239
http://www.propertyrightsresearch.org
______
[A letter submitted for the record by Andrew E. Wetzler,
Director, Endangered Species Project, Natural Resources Defense
Council, follows:]
By electronic mail
August 8, 2007
Hon. Nick J. Rahall, II
Chairman
House Committee on Natural Resources
1324 Longworth Building
Washington, DC 20515
Dear Congressman Rahall:
Please find enclosed a copy of a letter, written by Dr. Sylvia
Fallon to Secretary of the Interior in response to a letter sent to the
Secretary by Senator Wayne Allard. Senator Allard's letter concerns the
U.S. Fish and Wildlife Service's conduct surrounding the threatened
status of the Preble's meadow jumping mouse. Our understanding is that
this letter was forwarded to your Committee for inclusion in the record
of last week's hearing regarding the proposed delisting of the mouse
from the federal list of threatened and endangered wildlife.
As Senator Allard mentioned Dr. Fallon, an NRDC staff scientist, by
name in his letter, we felt compelled to respond. Accordingly, we
request that you include Dr. Fallon's response in the record along with
Sen. Allard's letter.
Thank you for your attention to this matter.
Very truly yours,
Andrew E. Wetzler
Director, Endangered Species Project
Natural Resources Defense Council
______
[The letter from Sylvia Fallon, Ph.D., Staff Scientist,
Endangered Species Project, Natural Resources Defense Council,
to Secretary Kempthorne submitted for the record by Mr. Wetzler
follows:]
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