[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

                               __________

       Printed for the use of the Committee on Natural Resources



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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:]
    [GRAPHIC] [TIFF OMITTED] T7135.001
    
    [GRAPHIC] [TIFF OMITTED] T7135.002
    
    [GRAPHIC] [TIFF OMITTED] T7135.003
    
    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
[email protected]
                                 ______
                                 
    [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

                        [email protected]

                        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
[email protected]
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:]
[GRAPHIC] [TIFF OMITTED] T7135.010

[GRAPHIC] [TIFF OMITTED] T7135.011

                               
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