[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
ZERO ACCOUNTABILITY: THE CONSEQUENCES OF POLITICALLY DRIVEN SCIENCE
=======================================================================
OVERSIGHT HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, April 29, 2015
__________
Serial No. 114-5
__________
Printed for the use of the Committee on Natural Resources
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____________
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Louie Gohmert, TX Madeleine Z. Bordallo, GU
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
John Fleming, LA CNMI
Tom McClintock, CA Niki Tsongas, MA
Glenn Thompson, PA Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY Jared Huffman, CA
Dan Benishek, MI Raul Ruiz, CA
Jeff Duncan, SC Alan S. Lowenthal, CA
Paul A. Gosar, AZ Matt Cartwright, PA
Raul R. Labrador, ID Donald S. Beyer, Jr., VA
Doug LaMalfa, CA Norma J. Torres, CA
Bradley Byrne, AL Debbie Dingell, MI
Jeff Denham, CA Ruben Gallego, AZ
Paul Cook, CA Lois Capps, CA
Bruce Westerman, AR Jared Polis, CO
Garret Graves, LA Vacancy
Dan Newhouse, WA
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Jason Knox, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
Sarah Parker, Democratic Deputy Chief Counsel
------
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
LOUIE GOHMERT, TX, Chairman
DEBBIE DINGELL, MI, Ranking Democratic Member
Doug Lamborn, CO Jared Huffman, CA
Raul R. Labrador, ID Ruben Gallego, AZ
Bradley Byrne, AL Jared Polis, CO
Bruce Westerman, AR Vacancy
Jody B. Hice, GA Vacancy
Aumua Amata Coleman Radewagen, AS Raul M. Grijalva, AZ, ex officio
Alexander X. Mooney, WV
Rob Bishop, UT, ex officio
------
CONTENTS
----------
Page
Hearing held on Wednesday, April 29, 2015........................ 1
Statement of Members:
Dingell, Hon. Debbie, a Representative in Congress from the
State of Michigan.......................................... 3
Prepared statement of.................................... 4
Gohmert, Hon. Louie, a Representative in Congress from the
State of Texas............................................. 1
Prepared statement of.................................... 2
Grijalva, Hon. Raul, a Representative in Congress from the
State of Arizona........................................... 5
Prepared statement of.................................... 6
Statement of Witnesses:
Beckett, Honorable Clara, Bastrop County Commissioner,
Precinct 2, Bastrop, Texas................................. 14
Prepared statement of.................................... 16
Questions submitted for the record....................... 32
Hartnett White, Kathleen, Distinguished Senior Fellow-in-
Residence and Director, Armstrong Center for Energy and
Environment, Texas Public Policy Foundation, Austin, Texas. 7
Prepared statement of.................................... 9
Questions submitted for the record....................... 12
Lunny, Kevin, Owner, Drakes Bay Oyster Company, Point Reyes,
California................................................. 45
Prepared statement of.................................... 46
Questions submitted for the record....................... 49
Supplemental documentation submitted for the record...... 72
Oreskes, Naomi, Ph.D., Professor of the History of Science
and Director of Graduate Studies, Department of the History
of Science, Harvard University, Cambridge, Massachusetts... 33
Prepared statement of.................................... 34
Questions submitted for the record....................... 40
Additional Materials Submitted for the Record:
Arctic Slope Regional Corporation, April 28, 2015 Letter
addressed to Chairman Gohmert.............................. 87
East Coast Shellfish Growers Association, April 25, 2015
Letter addressed to Chairman Gohmert....................... 90
Feinstein, Hon. Dianne, March 12, 2015 Letter addressed to
the Honorable Ken Salazar and the Department of Interior,
submitted for the record by Mr. Labrador................... 86
Hulls, John R., April 27, 2015 Letter addressed to Chairman
Gohmert.................................................... 93
List of documents submitted for the record retained in the
Committee's official files................................. 105
Pacific Coast Shellfish Growers Association, April 27, 2015
Letter addressed to Chairman Gohmert....................... 91
Rogers, Norman, ``Naomi Oreskes, Conspiracy Queen,'' American
Thinker, June 7, 2011...................................... 96
Singer, Fred, ``Science and Smear Merchants,'' American
Thinker, June 21, 2011..................................... 98
Singer, Fred, A Response to ``The Climate Change Debates,''
Heartland Institute, November 7, 2010...................... 100
Tetra Tech, a Working Paper titled ``Disaster Debris
Monitoring and Bastrop County, Texas Federal Emergency
Management Agency (FEMA) DR-4029''......................... 103
OVERSIGHT HEARING ON ZERO ACCOUNTABILITY: THE CONSEQUENCES OF
POLITICALLY DRIVEN SCIENCE
----------
Wednesday, April 29, 2015
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 2:32 p.m., in
room 1334, Longworth House Office Building, Hon. Louie Gohmert
[Chairman of the Subcommittee] presiding.
Present: Representatives Gohmert, Labrador, Hice,
Radewagen, Mooney; Dingell, Huffman, and Grijalva.
Mr. Gohmert. The Subcommittee on Oversight and
Investigations will come to order.
The subcommittee meeting today is to hear testimony on,
``Zero Accountability: The Consequences of Politically Driven
Science.'' Under Committee Rule 4(f), any oral opening
statements at hearings are limited to the Chairman and the
Ranking Member and the Vice Chair and a designee of the Ranking
Member. This will allow us to hear from our witnesses sooner
and help Members keep to their schedules.
Therefore, I ask unanimous consent that all other Members'
opening statements be made part of the hearing record if they
are submitted to the Subcommittee Clerk by 5:00 p.m. today or
the close of the hearing, whichever comes first. Hearing no
objection, that is so ordered.
STATEMENT OF THE HON. LOUIE GOHMERT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Gohmert. This is the first meeting of the newly
established Subcommittee on Oversight and Investigations. First
I would like to thank Congresswoman Dingell for her willingness
to serve as Ranking Member, especially having to sit next to
me. I am very grateful. I thought a great deal of your husband
while he was serving here; he was a man of honor. And I look
forward to working with you.
The subcommittee is a reflection of Chairman Bishop's and
my commitment to place a greater focus on oversight in the
Natural Resources Committee. Our committee has jurisdiction
over more than 100,000 employees managing half a billion
surface acres. I recognize within these bureaus are many
dedicated people working on behalf of the country to see that
our lands are worked and enjoyed to the maximum extent
possible.
However, as we will hear today, there are also times when
individuals take advantage of their position and exercise not
good stewardship, but a violation of trust with the American
people.
We have a great responsibility here. While the focus of our
committee may only be a small fraction of the Government,
financially speaking, the authorities we oversee have a major
impact on millions of individuals across the Nation. It should
be our goal to see that checks are in place to address some of
the abuses we are going to hear about today.
I would like to thank the witnesses for traveling here
today. I know you did not come just because of the big
paycheck. For those that do not know, there is no paycheck. But
it is, I know, out of a sense of service to our country; so
thank you. Some of what we are going to hear today defies
logic, common sense, and even basic compassion. This will be an
honest assessment of how the system has failed. There is not
any other way to describe it.
It is astounding reading the testimony, as I did last
night, of those that are going to be here and are here today.
At every level, a lack of accountability let a bureaucracy, or
even the bully, win and our constituents, our friends, our
neighbors, and our families pay with their livelihoods and
their safety. We could have cared for the least of these, but
we chose a toad instead.
For this reason, our first hearing of this new subcommittee
is entitled ``Zero Accountability.'' I want it seared into the
records of this Congress and on the minds of its Members
exactly what happens when we leave individuals to fend for
themselves against the Federal Government. Why else are we here
if not to hold accountable those charged with executing the
laws that we establish?
I am looking forward to having more accountability and am
open to Minority suggestions for oversight where the Government
has become abusive, because we see it from both sides of the
aisle, we hear about it from constituents, and look forward to
working together to oversee what is entrusted to our care. So
thank you.
[The prepared statement of Mr. Gohmert follows:]
Prepared Statement of the Hon. Louie Gohmert, Chairman, Subcommittee on
Oversight and Investigations
This is the first meeting of the newly established Subcommittee on
Oversight and Investigations. First, I'd like to thank Congresswoman
Dingell for her willingness to serve as Ranking Member and I look
forward to the opportunities we will have to work together on
government accountability.
This subcommittee is a reflection of Chairman Bishop's and my
commitment to place a greater focus on oversight in the Natural
Resources Committee. Our committee has jurisdiction over more than
100,000 employees managing half a billion surface acres. I recognize
within these bureaus are many dedicated people working on behalf of the
country to see that our lands are worked and enjoyed to the maximum
extent possible.
However, as we will hear today, there are also times when
individuals take advantage of their position and exercise not good
stewardship, but a violation of trust with the American people.
We have a great responsibility here. While the focus of our
committee may only be a small fraction of the government financially
speaking, the authorities we oversee have a major impact on millions of
individuals across the Nation. It should be our goal to see that checks
are in place to address some of the abuses we will hear today.
I'd like to thank the witnesses that traveled here to inform our
subcommittee about what exactly is going on at the ground level of the
Federal Government. Some of what we are going to hear defies logic,
common sense and even basic compassion. This will be an honest
assessment of how the system miserably failed. There isn't any other
way to describe it.
It is astounding reading this testimony how many different times
the right choices could have been made. At every level a lack of
accountability let the bureaucracy, or even the bully, win and our
constituents, our friends, our neighbors, and our families paid with
their livelihoods and their safety. When we could have cared for the
least of these, we chose a toad instead.
For this reason our first hearing of this new subcommittee is
entitled ``Zero Accountability.'' I want it seared on the records of
this Congress and on the minds of its Members exactly what happens when
we leave individuals to fend for themselves against this Federal
Government. Why else are we here if not to hold accountable those
charged with executing the laws that we establish?
______
At this time I would like to recognize the Ranking Member,
Ms. Dingell, for any opening statement.
STATEMENT OF THE HON. DEBBIE DINGELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Ms. Dingell. Thank you, Mr. Chairman, and for those very
kind remarks, for your recognition of my husband and his
friendship with you, and for holding this hearing today. Though
we will almost certainly differ on a number of issues which the
subcommittee will explore, I hope we can find common ground on
many issues as well. There is no shortage of natural resource
issues that deserve oversight, and I am optimistic that there
is common ground to be had.
I would also like to thank our witnesses for being here
with us today. We know, as the Chairman said, that your
traveling here is not always the easiest, but you understand
the importance of talking to you and talking about the issues.
That brings me to today's hearing. I think the Chairman has
chosen his first hearing topic well. The manipulation of
science to achieve a predetermined policy end has become an
increasingly common tactic. The tobacco industry, chemical
industry, pharmaceutical industry, and the fossil fuel industry
have had resounding success when they engage in a particular
kind of politically driven science--manufacturing doubt.
One of our witnesses, Naomi Oreskes of Harvard University,
specializes in the history of science and has literally written
the book that describes these campaigns that aim to create the
impression of scientific uncertainty when the science is
actually very clear.
When there is doubt about the science of an issue,
Americans do not want to take a chance on a policy remedy that
might be unnecessary because there is a risk of unintended
consequences. We have to wait until the science is clear, and
it often moves at a glacial pace.
So we have to hope that the science becomes clear before
the problem does too much damage or becomes irreversible. In
the meantime, delay represents victory. One of the most popular
ways to kill a policy initiative in Washington, DC is to delay
it. If it cannot be killed altogether, delay buys more time
under the status quo. It is popular because it works.
We are seeing these same tactics used today in the debate
on climate change. Delaying action on climate change has
consequences. If we let global temperature increase by 3
degrees, it will cost the United States about $150 billion a
year from damage to our health, loss of biodiversity, physical
impacts from rising seas and more severe storms, droughts, and
wildfires alone.
And climate change will have a real impact on the Great
Lakes in my home state of Michigan, including increased
invasive species, much more frequent harmful algae blooms, and
declining beach health, which we are already, unfortunately,
seeing and saw last year again, where many people just could
not drink water or go into the water.
We are missing important opportunities. According to Ernst
& Young, China has now surpassed the United States in investing
in renewable energy. Ceding the lead on the transition to a
low-carbon economy ensures that they will get a jump on
lucrative emerging markets, economies of scale, patents, and a
trained workforce.
I do not want to buy my energy created by solar panels made
in Japan--or made in China; sorry, I was thinking of the Prime
Minister. I want to buy my energy from panels made in the
United States. I want to see the jobs created here, where we
already have some of the best manufacturing infrastructure and
workers in the world, and that you and I agree on. We want to
create those here and keep them here. I want those good-paying
jobs here, where they can form rungs of ladders out of poverty
in a Nation where the ranks of the poor are growing.
There is no doubt in my mind we can transition to a clean
energy economy and come out the other side as a stronger
Nation. I have faith that we can do better than the status quo
if we trust in our workers, and if we trust in Americans to
innovate, and if we trust in our scientists who tell us it must
be done.
So thank you, Mr. Chairman. I am looking forward to today's
hearing.
[The prepared statement of Ms. Dingell follows:]
Prepared Statement of the Hon. Debbie Dingell, Ranking Member,
Subcommittee on Oversight and Investigations
Chairman Gohmert, thank you for the recognition and for holding
this hearing today. Though we will almost certainly differ on a number
of issues which this subcommittee will explore, I hope we can find
common ground on many issues as well. There is no shortage of natural
resource issues that deserve oversight and I am optimistic there is
common ground to be had. I would also like to thank our witnesses for
being here today.
That brings me to today's hearing. I think the Chairman has chosen
his first hearing topic well. The manipulation of science to achieve a
predetermined policy end has become an increasingly common tactic.
The tobacco industry, chemical industry, pharmaceutical industry,
and the fossil fuel industry have had resounding success when they
engage in a particular kind of politically driven science--
manufacturing doubt. One of our witnesses, Naomi Oreskes of Harvard
University, specializes in the history of science and has literally
written the book that describes these campaigns that aim to create the
impression of scientific uncertainty where the science is actually
clear.
When there is doubt about the science of an issue, Americans don't
want to take a chance on a policy remedy that might be unnecessary
because there is a risk of unintended consequences. We have to wait
until the science is clear, and it often moves at a glacial pace. So we
have to hope that the science becomes clear before the problem does too
much damage, or becomes irreversible. In the meantime, delay represents
victory. One of the most popular ways to kill a policy initiative in
Washington, DC is to delay it. If it can't be killed altogether, delay
buys more time under the status quo. It's popular because it works.
We are seeing these same tactics used today in the debate on
climate change. Delaying action on climate change has consequences. If
we let global temperature increase by 3 degrees, it would cost the
United States about $150 billion a year from of damage to our health,
loss of biodiversity, and physical impacts from rising seas and more
severe storms, droughts and wildfires alone.\1\ And climate change will
have a real impact on the Great Lakes in my home state of Michigan,
including increased invasive species, more frequent harmful algae
blooms, and declining beach health.
---------------------------------------------------------------------------
\1\ https://www.whitehouse.gov/sites/default/files/docs/
the_cost_of_delaying_action_to_stem_ climate_change.pdf.
---------------------------------------------------------------------------
We are missing important opportunities. According to Ernst and
Young, China has now surpassed the United States in investing in
renewable energy.\2\ Ceding the lead on the transition to a low carbon
economy ensures they will get the jump on lucrative emerging markets,
economies of scale, patents, and a trained workforce.
---------------------------------------------------------------------------
\2\ http://www.ey.com/Publication/vwLUAssets/EY_-
_China_reclaims_the_top_spot_for_
renewables_energy_investment_attractive/$FILE/EY-recai-Issue42-11-sep-
2014.pdf.
---------------------------------------------------------------------------
I don't want to buy my energy created by solar panels from China. I
want to buy my energy from panels made in the United States where we
already have some of the best manufacturing infrastructure and workers
in the world. I want those good paying jobs to be created here, where
they can form rungs on ladders out of poverty in a nation where the
ranks of the poor are growing.
There is no doubt in my mind we can transition to a clean energy
economy and come out the other side stronger as a Nation. I have faith
that we can do better than the status quo if we trust in our workers,
if we trust in Americans to innovate, and if we trust our scientists
who tell us it must be done.
______
Mr. Gohmert. Thank you very much.
At this time I will introduce our witnesses. Oh, that is
right. Mr. Grijalva, do you wish to make an opening statement?
Mr. Grijalva. Thank you.
Mr. Gohmert. Yes, sir.
STATEMENT BY THE HON. RAUL GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you, Mr. Chairman. Again, I want to, as
I did personally, congratulate you on your chairmanship of this
new subcommittee. I know we will not agree often, but I think
we can agree that congressional oversight is important. It is
valuable, and I hope we get some opportunities to do some good
things here with our work.
I also want to thank and congratulate Ranking Member
Dingell for dedicating her time, effort, and expertise to this
subcommittee. We have great confidence in her leadership, and
she knows very well that all of us look forward to working with
her.
And thank you to the witnesses for taking the time and
effort to come here today.
Mr. Chairman, I would like to begin with a quote from a
book written by one of our witnesses today. The excerpt goes
something like this:
``Imagine a gigantic banquet. Hundreds of millions of
people come to eat. They eat and drink to their heart's
content. Then one day a man arrives holding a bill. Not
surprisingly, the diners all go into shock. Some begin
to deny that this is their bill. Others deny that there
is even a bill. Still others deny that they partook of
the meal. One diner suggests that the man is not really
a waiter, but is only trying to get attention for
himself or to raise money for his own projects.
Finally, the group concludes that if they simply ignore
the waiter, he will go away. This is where we stand
today on the subject of global warming. For the past
150 years, industrial civilization has been dining on
energy stored in fossil fuels, and the bill has come
due. Yet we have sat around the dinner table denying
that it is our bill and doubting the credibility of the
man who delivered it.''
That is from the excellent ``Merchants of Doubt'' book,
which I am proud to say was co-authored by one of our witnesses
today, Professor Naomi Oreskes. Her book shows how multi-
billion dollar industries manipulate science to pad their
profits at the expense of the American people. Their favorite
tactic is to manufacture doubt about the state of the science,
which undermines the case for taking any action at all to
address a problem.
Manufacturing doubt can be done in many different ways. You
can question the quality of the science that indicates there is
a problem with your product. You can find a scientist who
agrees with you and fund their research or give them media
training. You can take the research to the press and demand
that they print both sides of the story as if there was really
a controversy.
In a hearing about politically driven science, climate
denial is the ultimate case study. Its tactics are well-
documented, including paying scientists to produce industry-
friendly science. Individual case studies where accusations of
scientific misconduct exist should be investigated.
But we need to be clear. There is an ongoing, well-
organized, well-funded campaign to deny climate change and the
established science behind it. That campaign poses serious risk
to the quality of life on this planet and to the American
people.
Again, Chairman Gohmert, thanks for helping us give this
topic an overdue hearing, and I look forward to the testimony.
I yield back.
[The prepared statement of Mr. Grijalva follows:]
Prepared Statement of the Hon. Raul Grijalva, a Representative in
Congress from the State of Arizona
Thank you, Mr. Chairman. I want to congratulate you on your
chairmanship of this new subcommittee. I know we don't agree often, but
I think we can agree that congressional oversight is important and
valuable, and I hope we get some opportunities to do some good work
here.
I also want to thank and congratulate Ranking Member Dingell for
dedicating her time, effort, and expertise to this subcommittee. I have
great confidence in her leadership, and as she knows I very much look
forward to working with her.
And thank you to the witnesses for making the time and effort to
come here today.
I would like to begin with a quote from a book written by one of
our witnesses today:
``Imagine a gigantic banquet. Hundreds of millions of people come
to eat. They eat and drink to their hearts' content . . . Then, one
day, a man arrives . . . holding the bill.
Not surprisingly, the diners are in shock. Some begin to deny that
this is their bill. Others deny that there even is a bill. Still others
deny that they partook of the meal. One diner suggests that the man is
not really a waiter, but is only trying to get attention for himself or
to raise money for his own projects. Finally, the group concludes that
if they simply ignore the waiter, he will go away.
This is where we stand today on the subject of global warming. For
the past 150 years, industrial civilization has been dining on the
energy stored in fossil fuels, and the bill has come due. Yet, we have
sat around the dinner table denying that it is our bill, and doubting
the credibility of the man who delivered it.''
That's from the excellent Merchants of Doubt, which I'm proud to
say was co-authored by one of our witnesses today, Professor Naomi
Oreskes. Her book shows how multi-billion-dollar industries manipulate
science to pad their profits at the expense of the American people.
Their favorite tactic is to manufacture doubt about the state of the
science, which undermines the case for taking action on a problem.
Manufacturing doubt can be done in different ways. You can question
the quality of the science that indicates there's a problem with your
product. You can find a scientist who agrees with you and fund their
research or give them media training. You can take their research to
the press and demand that they print both sides of the story as if
there were actually a controversy.
In a hearing about politically driven science, climate denial is
the ultimate case study. Its tactics are well documented, including
paying scientists to produce industry-friendly science.
Individual case studies where accusations of scientific misconduct
exist should be investigated, but we need to be clear: there is an
ongoing, well-organized, well-funded campaign to deny climate change
and the settled science behind it. That campaign poses serious risks to
the quality of life on this planet.
I thank Chairman Gohmert for helping us give this topic an overdue
hearing, and I look forward to the testimony.
______
Mr. Gohmert. Thank you. The gentleman has yielded back.
We will now introduce our witnesses. First of all we have
Mrs. Kathleen Hartnett White. She is a Distinguished Senior
Fellow-In-Residence and the Director of the Armstrong Center
for Energy and Environment with the Texas Public Policy
Foundation. Then we have the Honorable Clara Beckett, Bastrop
County Commissioner, Precinct 2, from the Austin, Texas area;
well, that is what this says, but you are from Bastrop. Yes.
Mr. Kevin Lunny, Owner, Drakes Bay Oyster Company, and also Ms.
Naomi Oreskes. We are pleased to have you all here.
With that, we will go ahead and begin the opening
statements by our witnesses. You each have 5 minutes. Even if
you do not finish your oral testimony, your entire written
statement is part of the record.
The light will start green. After 4 minutes it goes to
yellow; when it turns red, the time is up. You just need to
finish the summary from there; but again, your written
testimony will be part of the record. Also, each of you will
give your opening statements before any questions will be
allowed by the Members. So with that, I will ask Mrs. Kathleen
Hartnett White, if you would please begin the opening
statements. You have 5 minutes.
STATEMENT OF KATHLEEN HARTNETT WHITE, DISTINGUISHED SENIOR
FELLOW-IN-RESIDENCE AND DIRECTOR, ARMSTRONG CENTER FOR ENERGY
AND ENVIRONMENT, TEXAS PUBLIC POLICY FOUNDATION, AUSTIN, TEXAS
Mrs. Hartnett White. Thank you, Chairman Gohmert and
Ranking Member Dingell and all the members of the subcommittee,
for the opportunity to testify on what I think is an
increasingly important topic. My testimony will take the angle
of the development and use of science in government agencies
predominately.
I want to acknowledge my experience as, for 6 years,
chairman of the equivalent of the Texas EPA, which is a very
large environmental regulatory agency, in which I, as a non-
scientist, because of my position as final decisionmaker,
frequently was called upon to assess the robustness and the
quality and the credibility of all kinds of science informing
what were ultimately final policy decisions.
Science is a critical tool in the development and
implementation of regulation, but not all science is created
equal. I am going to focus on a single example, of which there
could be many, that is a Texas example surrounding the
endangered whooping crane, who winters in the lower part of the
Guadalupe River Basin, a magnificent species. In the 1940s, it
was thought there were only 15 members left, and now there are
500. I am proud that our state agencies and volunteers and the
Fish and Wildlife Service are seeing a recovering species.
However, a lawsuit has arisen which I think is an example
of how very weak government science could lead to enormous
impacts on the state of Texas, an unusual case under the
Endangered Species Act.
Instead, as is typical with a challenge to Fish and
Wildlife Service for failure to list a species or for failure
to implement a habitat conservation plan, this lawsuit sues the
state of Texas and claims that the actions of the Texas
Commission on Environmental Quality, who under state law is in
charge of all surface water allocations and water rights,
charging that state agency for the take, in terms of the ESA,
for the killing of 23 whooping cranes in 2008 and 2009, which
was a record number.
Texas lost at the District Court level. What would that
mean? That would mean that according to the judge's ruling,
that the Fish and Wildlife Service would really control the
state agency's management of surface water. It really would set
Texas on a path that we hear a lot about in California, of the
Delta smelt. The perceived needs of the species would be a
super-priority before any human use of surface water in the
basin occurred. At the Appellate Court level, the District
Court's ruling was reversed, and now the original plaintiffs
have requested a review by the Supreme Court.
There were key facts in this. What the judge called core
facts in this issue were the deaths of 23 whooping cranes,
developed by local Fish and Wildlife Service biologists in
their annual population counts. That was considered dispositive
to the judge.
When the evidentiary record of the District Court's ruling
was almost complete, Fish and Wildlife issued a report
declaring the methodology used for the count of those 23 deaths
as ``untenable'' and ``indefensible.'' There were efforts to
submit that evidence, along with a very interesting new set of
facts, and the judge denied them.
So, for the lawyers in the room, the District Court
establishes the facts. The Appellate Court and the Supreme
Court cannot add additional facts. Some very important
additional facts, besides the fact that Fish and Wildlife
Service has abandoned and really trashed, if you will, the
scientific methodology for making these bird counts.
In 2008 and 2009, the claim was, remember, 23 birds dead,
mostly because they were missing when the survey was conducted.
They were not in their usual places. In the next year when the
census was done, the same number, 17 birds, mysteriously
reappeared. That really is a scientific issue.
But those facts, that the basis of the count made in 2008
and 2009 at the heart of the case, were in fact factually
incorrect, it is one of many examples of how correlation is not
necessarily causation. That, as an issue in science, is rampant
throughout the Federal agencies.
I am about to conclude. For over 40 years, we have been
implementing these major Federal environmental laws. We have
learned a great deal. A whole body of environmental science has
developed. Now I think it is time just to make sure that it is
strong, that the strength of the science is proportionate to
the magnitude of the impacts. Thank you.
[The prepared statement of Mrs. Hartnett White follows:]
Prepared Statement of Kathleen Hartnett White, Distinguished Senior
Fellow and Director, Armstrong Center for Energy and the Environment,
Texas Public Policy Foundation, Austin, Texas
Chairman Gohmert and members of the Oversight and Investigation
Subcommittee, I thank you for the opportunity to offer testimony on an
issue of pivotal importance to our country.
overview
Sound, rigorous science is an appropriate driver of regulatory
programs across the Federal agencies. The science used by the
government to justify regulatory decision, however, has become
increasingly weak, cherry-picked, opaque, and at odds with genuine
scientific method. Members of the National Academy of Science's review
panels have shared this assessment in recent years.
As regulatory programs balloon, their scientific justification
weakens. The reverse order should be true. The stakes are high. Yet,
there are few available avenues to challenge the credibility of agency
science. The Federal courts typically give broad deference to an
agency's technical expertise in matters scientific. Yet, government
science is now used to justify regulatory initiatives with
unprecedented impacts on this country. My testimony will highlight one
example, in Texas, of how weak science under the ESA has been used to
justify a Federal take-over of fundamental state authority to allocate
surface water for human uses.
I offer this testimony from a perspective gained through my 6-year
experience as the final regulatory decisionmaker (Chairman) of the
Texas Commission on Environmental Quality (TCEQ), the world's second
largest environmental agency after the EPA. Through my previous work on
environmental issues in Washington, DC for the National Cattlemen's
Association and through four other gubernatorial-appointed Commissions
in Texas, I have observed the implementation of Federal environmental
laws over the last 30 years.
Robust science conducted under empirical methodologies is a
critical tool to inform law making and agency regulatory implementation
of those laws whether that involves listing decisions and conservation
plans under the Endangered Species Act or National Ambient Air Quality
Standards under the Clean Air Act.
Some will claim that non-scientists, like me, cannot assess the
credibility of the work of credentialed scientists. The structure of
our democracy, however, requires that our popularly elected
representatives or appointed heads of agencies make the final policy
decisions in which all manner of science, of course, plays an essential
role. My job as chairman of TCEQ required that I make judgments about
science. Making final decisions for Texas on regulations, state
implementation plans, environmental standards, permits, and enforcement
action necessarily involved my judgments about the rigor, accuracy and
relative uncertainties in diverse scientific studies, statistics,
modeling protocols and technical analyses.
In recent years, I have observed a substantial deterioration of the
quality of science driving regulatory or judicial decisions.
Implausible assumptions somehow immune to verification, worst case
scenarios, cherry-picked studies, mysteriously missing data, and
absurdly precautionary methodology are now regularly used by Federal
agencies to justify regulatory regimes of expanding impact.
I believe that science is a critical tool to inform policy,
legislation and regulation. But not all of what is called science is
equally robust, transparent or objective. Scientific methodology can be
easily manipulated to support a pre-determined policy or political
preference.
the whooping crane lawsuit
My testimony will highlight scientific issues at the core of an
unusual lawsuit surrounding the federally endangered whooping crane.
This species winters in and around the Aransas National Wildlife Refuge
(ANWR) on the Texas Gulf Coast, at the bottom of the Guadalupe and San
Antonio river basins. (See, Aransas Project v. Shaw, 775 F.3d 641,
(2014)). To this end, I submit for the record a study commissioned and
published by the Texas Public Policy Foundation, ``Analysis of the
Science: The Whooping Crane Decision'' by a widely regarded technical
expert on the issue, Dr. Lee Wilson.
This litigation offers an example of the far-reaching impacts that
can flow from science developed by the Federal Government as used by
environmental activist litigators. The stakes in this litigation for
the state of Texas are unprecedented. If Texas loses, the Federal
Government through the U.S. Fish and Wildlife Service (FWS) will
control allocations and diversions of all surface water in large river
basins. Texas will lose its exclusive authority to manage allocations
of water, uphold long vested water rights, or issue new water rights in
an entire river basin originating in the Texas Hill Country flowing
through San Antonio and into the bays in this fast growing region of
the state.
Instead, FWS would control the state's management of surface water
diversions throughout the basins under a Federal Habitat Conservation
Plan (HCP). The alleged water needs of the whooping cranes would become
a super priority over all water rights in the Guadalupe river basin.
Vested water rights for beneficial human use would become second
priority, to include curtailing existing water rights held in
perpetuity. These impacts could put Texas under the kind of Federal
water control that California is now experiencing under FWS's
``science'' designed to protect the Delta Smelt. Federally listed or
candidate species exist in all Texas river basins. If Texas does not
prevail in this litigation, the likelihood the risk of FWS control of
surface water allocations throughout Texas would be high.
This lawsuit is still pending in the Federal courts. Initially, the
Federal District Court ruled against Texas and issued an emergency
order freezing TCEQ authority to issue new water rights in the San
Antonio and Guadalupe River basins until FWS developed a conservation
plan that would govern consumptive water use. The Fifth Circuit Court
of Appeals reversed and ruled in favor of Texas. The original
environmental plaintiff now request review by the U.S. Supreme Court.
The disturbing irony in this litigation is that the assumed
polarization of the water needs of an endangered species and the water
needs of human beings does not match the facts of this case under the
lens of more robust science. The whooping crane population and water
diversions for human use in these river basins increased over the same
time period. This is a fantastic ``win-win'' for the well-being of the
whooping cranes and Texans!
The Aransas Buffalo Whooping Crane is a magnificent species worthy
of the attentive care of mankind. In the 1940s perhaps only 15 cranes
existed. Conservation efforts, in which the state of Texas played an
important role, have helped the population to increase to around 500
birds. The species is recovering. The data demonstrates that the
increasing population of whooping cranes correlates with increasing
consumptive water use from 1941-2010. (Wilson, 11). The Texas
population of around 300 birds is the only wild (non-captive) flock in
the world.
Aransas Project v. Shaw takes an approach unusual in the history of
the ESA. The most prevalent form of litigation under the ESA is legal
challenge to FWS for failure to list, failure to implement protective
measures, or failure to enforce. In this suit, the environmentalist
plaintiffs sued the state of Texas--not FWS--through the officials and
state agency charged with allocation of surface waters, the TCEQ. Their
claim is that the TCEQ is liable for killing a record number of 23
whooping cranes, or, in the ESA's legal terms, what is known as a
``Take'' of a listed species. The plaintiffs argue that TCEQ's
fundamental authority and legal obligation under state law to uphold
existing water rights caused the deaths of 23 whooping cranes in 2008-
2009--a number established by the FWS' annual local census of the crane
population.
But there was a major wrinkle in this census. In the next annual
survey (2009-2010), 17 additional whooping cranes ``mysteriously
returned.'' According to Dr. Wilson's analysis, these 17 cranes are the
exact number that FWS found ``missing'' from their territory in 2008-
2009 and thus presumed dead. ``This number is 17: 17 birds dead in
2008-2009 only because they were missing; 17 ``unexpected'' birds
returning in fall 2009.'' (Wilson, 19).
FWS wildlife biologists' annual estimates of the population of a
listed species is fundamentally important to FWS' central job to
prevent the risk of extinction by increasing the population and range
of the species. The wildlife counts, however, typically lack rigorous
methodology and are thus highly prone to error. Yet, these numbers are
critical every step of the way in the ESA's legal ambit--from candidate
and listing decisions, to ``jeopardy'' decisions under Section 7 of the
Act, and to regulatory conservation plans and enforcement actions.
In the pending whooping crane litigation, the FWS's claim that 23
whooping crane deaths occurred over the 2008-2009 wintering season was
accepted by the judge as the core fact of the case. The accuracy of
FWS' whooping crane population survey, and thus the underlying
scientific methodology endorsed by FWS to conduct these surveys, were
found to be dispositive in the opinion of the District Court judge.
The FWS then abandoned the methodology for estimating the
population of whooping cranes as ``untenable,'' soon after the District
Judge made her ruling. Texas requested that the evidentiary record be
re-opened to include the new evidence about the return of the 17
unexpected cranes and the FWS's new methodology. The Judge declined.
The weakness of the FWS's whooping crane population survey in 2008-
2009 became glaringly apparent before the District Court's ruling.
First, 17 whooping cranes, thought missing and thus dead in 2008-2009,
mysteriously showed up in 2009-2010! Second, a FWS report in 2012
described the assumptions of methodology that led to the 2008-2009
estimate of 23 whooping crane deaths at ANWR as ``untenable'' and not
``defensible.'' (Wilson, 4); (See also, ``Aransas-Wood Buffalo Whooping
Crane Abundance Survey,'' released September 24, 2012 by the FWS).
Subsequently, the FWS completely abandoned the old methodology, on
which the District Court grounded its ruling against the TCEQ. The FWS
was glaringly absent from this litigation. An expert witness testified
in support of the conclusions of FWS' local wildlife biologist in ANWR
that 23 whooping cranes died during the 2008-2009 season. FWS
apparently made no effort to intervene or to supplement the evidentiary
record. And note that the report of 23 whooping cranes presumed dead
did not spawn any legal action by the FWS. Given the stakes of this
litigation, FWS' silence was deafening.
Because the District Court determines what are the facts at trial,
a potential Supreme Court review will be without the new, more
compelling facts that undermine the evidence on which the District
Court ruled. The absence of these new facts could trouble a Supreme
Court review.
The conflation of untested correlation and causation is an endemic
scientific problem across multiple agencies. Agencies regularly use
correlations (crane deaths) to establish legal causation (increasing
water consumption in the river basin). Correlations can be analyzed
within a causal framework, such as the commonly used Bradford Hill
criteria, to determine whether an observed correlation is more or less
likely to be a factual cause. Additionally, the causal credibility of a
correlation should be tested against alternative explanations for
correlation.
As Dr. Wilson reminds: ``In science, testing of multiple hypothesis
is essential to sound methodology.'' (Wilson, 4). Note, Dr. Wilson's
analysis finds a much stronger correlation between local drought in
crane habitat and crane mortality, rather than consumptive water use
throughout an entire basin. What the now abandoned FWS methodology used
as the measure----missing birds = presumed dead----overlooked the good
news that the increasing and stronger crane population was enlarging
the reach of occupied territory--a positive sign of recovery.
The Aransas Buffalo Whooping Crane is a magnificent species worthy
of the attentive care of mankind. In the 1940s perhaps only 15 cranes
existed. Conservation efforts in which the state of Texas played an
important role have helped the population to increase to around 500
birds. The species is recovering. And the Texas population of around
300 birds is the only wild (non-captive) flock in the world.
Assuring integrity in government science is possible within our
system of government. Agencies should be held by law to minimal
criteria for credible science. Over the last 40 years, there has been
an enormous growth in the environmental sciences. Some disciplines are
more rigorous than others, but all could be strengthened within the
terms of the appropriate enabling Acts, or through amendments to the
Information Quality Act or the Data Quality Act.
Science rigorously conducted according to the empirical method in
which the accuracy of a hypothesis must be tested by physical evidence
is essential to sound governance in a democracy. Scientific findings
are, however, categorically different than policy judgments based on
reasoned weighing of societal trade-offs and relative risks. The depth
and breadth of Federal regulatory agencies, typically ruling under the
authority of science, is now so vast that it seems a fourth branch of
government has emerged, but this administrative power lacks
accountability to the constitutional branches of government.
______
Questions Submitted for the Record to Kathleen Hartnett White, Texas
Public Policy Foundation
Questions Submitted by Chairman Gohmert
Question 1. Under the current structure, what is the mechanism that
gives Federal scientists an advantage, or a level of deference that
puts non-Federal entities at a disadvantage?
Answer. Existing law and judicial precedent give broad, relatively
unqualified deference to the scientific findings that agencies use to
justify regulatory actions under the major Federal environmental laws.
When enacted over 40 years ago, Congress accorded relatively
unqualified trust in the credentialed experts employed by the agencies
as the arbiters of matters scientific. The Federal courts are extremely
hesitant to question the technical judgment of agencies because, in the
plain language of the law, Congress delegated such broad authority to
the agencies. Thus, there are few--if any--legal procedures through
which non-government scientists, impacted business and property owners
can challenge the validity of regulatory science considered the legal
foundation of agency rules.
Although there are multiple required procedures to validate
scientific findings, they have become dysfunctional for a variety of
reasons. The National Academy of Science review panels, indeed, have
challenged some agencies' scientific methodologies or findings. Yet,
those panels have no authority to compel agencies to correct their
errors or alter their conclusions. And many of the scientific advisory
groups intended to provide a kind of peer review are typically hesitant
to challenge agency science because many of the individual scientists
on these advisory groups depend on agency funding for their income.
Laws like the Data Quality Act (DQA) and the Information Quality
Act (IQA) also were intended to assure sound and robust science to
inform regulatory decision. The language of these laws, however, is so
general that agencies can readily skirt a vigorous justification of
their regulatory science.
These problems could be meaningfully addressed with relatively
simple amendment to the enabling laws as well as the DQA and IQA. Such
amendments would impose on agencies much needed accountability to
Congress and could establish meaningful legal grounds for private
parties to challenge the adequacy of agency science used to justify
regulatory decision of major national consequence.
Question 2. Today we are talking about ``Zero Accountability.'' No
one suggests that we throw scientists in prison for mistakes. We do not
want to deter creative research that pushes our understanding. So, how
do we move beyond the lack of accountability we see in these examples
today?
Answer. Creative science undertaken in universities and private
institutions and science developed by agency employees or commissioned
by Federal agencies to justify regulatory decisions of national
importance are quite different. Such Federal legal findings as EPA's
Endangerment Finding that CO2 is a pollutant within the authority of
the existing law, ESA listing of the Delta Smelt, and current
litigation that could put USFW Service in control of surface water
allocations in Texas are Federal actions based on science that trigger
a massive expansion of Federal control over basic economic activity.
Agencies must be required to validate the science they assert to
justify those decisions. Otherwise, our country is functioning more
like a technocracy run by Federal employees acting under the authority
of science rather than a democracy.
Government by popularly elected representatives, on the one hand,
and government by Federal administrators swearing by the authority of
science, on the other hand, are contradictory notions. I would call the
latter, moreover, an acutely dangerous notion. Regrettably, in the
modern United States these two incompatible policymaking models clash
often and with dire results. Elected officials trying to carry out
their public duties--e.g. maximizing access to clean, affordable
energy--meet stubborn opposition from Federal mandarins brandishing
their scientific credentials. The magnitude of the aggressive
regulatory agendas over the last 6 years has elevated the importance of
these issues.
Question 3. At first glance, it appears the Fish and Wildlife
Service made a simple counting mistake, albeit with a flawed method for
several decades. However, what is it that makes this more serious and
less innocent? What is it that makes this a dangerous precedent?
Answer. The FWS' methodology for regular census of the endangered
Whooping Cranes wintering on the Aransas National Wildlife Refuge in
Texas was accepted by the District Court Judge in the Whooping Crane
litigation as the determinative evidence on which the Judge ruled
against the state of Texas. FWS changed this methodology shortly after
the record was closed in the lawsuit. Under rules of Federal civil
procedure, the District Court establishes the evidentiary record. The
Appellate Court or the Supreme Court can neither reject nor add new
evidence to the trial court record in their appellate reviews. Thus,
FWS's weak and flawed annual census of the whooping cranes--now
replaced with sounder science by FWS--is part of the evidentiary record
and cannot be rejected by the higher courts.
The FWS was unusually absent from this litigation at the District
Court level. No effort was made to intervene which would have been
invaluable. Typical litigation under the Endangered Species Act (ESA)
involves a challenge to FWS for failure to implement actions argued as
legally required under the ESA. In contrast, the whooping crane
litigation was a challenge by an environmental plaintiff to the state
of Texas' oversight of surface water rights. If Texas loses at the
Supreme Court level, FWS will assume control of the state's system of
surface water rights--first throughout the Guadalupe river basin but
likely to extend to other river basins. Such a result could very well
lead to impacts as damaging as that now surrounding FWS protection of
the Delta Smelt in California.
Question 4. Some people assume that science from government or
academia is not driven by an agenda. Is that a reasonable assumption in
your experience?
Answer. I have observed, studied and made official decisions on the
basis of agency science for over 30 years. As Chairman of the Texas
Commission on Environmental Quality, my job required frequent
assessment of Federal and state regulatory science. I saw many examples
of genuinely objective and rigorous science . . . typically more in
agency conducted science at the state level rather than at the state
Federal level. On the basis of my experience as the final decisionmaker
in a state agency, I believe state agencies tackle environmental issues
with more realism and objectivity than Federal employees who often look
at the issues on paper with a one-size-fits-all approach that relegates
sound science to the backseat while making abstractions like ``national
consistency'' the driver. Regrettably, much agency science used by
Federal agencies appears to be a justification for predetermined policy
preference.
On the other hand, I think employees in both state and Federal
agencies have an inherent agenda to increase their jurisdiction and
funding. Such an agenda regularly biases the regulatory science. Also
there are career government employees who have strong ideological goals
to expand Federal control--a key reason why this country now lives
under thousands and thousands of Federal rules without any idea of
whether those rules are addressing genuine problems in an effective
manner.
Without more binding congressional oversight of this ideologically
technocracy now populating the Federal agencies, the rule of law
recedes. Under the self-proclaimed authority of science, agencies now
operate as if a fourth branch of government but with no accountability
to the Congress, the Judiciary or the Executive branch. As a single
example, the EPA has refused to release key data requested by Congress
that the Agency uses scientific foundation of onerous new National
Ambient Air Standards (NAAQS).
Question 5. Was there anything discussed during the hearing that
you felt you were not given ample time to elaborate on or properly
discuss?
Answer. I believe there are strategic ways to increase agency
accountability with regard to regulatory science. The major Federal
environmental laws, as well as the IQA and DQA, need to be amended to
impose obligations on the agencies to validate the relevant
methodologies and findings of their regulatory science.
For example, the EPA calls its many risk assessments the legal
foundation of regulation. Yet, EPA will cherry-pick among perhaps
hundreds of relevant studies to select a single study that shows the
highest risk in order to justify onerous regulation. EPA should be
required to perform genuine weight of evidence assessments of
background science--an analysis for which there are many widely
recognized protocols.
Science, of course, should drive Federal environmental regulation.
Drive does not mean dictate. There are, however, very different forms
of science some of which are far robust than others. Conflating the
difference between correlation and causation is a typical approach used
by agencies to exaggerate risk. See my ``EPA's Pretense of Science:
Regulating Phantom Risks.'' Agencies throughout the Federal Government
rely on scientific methodologies based on observed correlations. Yet,
we all know that a correlation like that between a higher incidence of
heart attacks in the winter and a higher incidence of purchasing heavy
coats in the winter does not mean heavy coats cause more heart attacks
in the winter. Yet, many Federal risk assessments use correlations this
implausible to establish the causation of an environmental problem that
therefore justifies Federal regulation. This is absurd, and there are
ways to validate or invalidate whether an observed coincidence is
likely a cause. Outside of government, one of the most widely used
frameworks to assess whether correlation is indeed causation is the
Bradford Hill analytical criteria. In regulatory areas where there are
weaker and stronger scientific methodologies, agencies should be
required to use the stronger approach.
After 40 years of private conservation and environmental regulation
under the major Federal environmental laws, most of the greatest risks
to human health, wildlife and other natural resources in the United
States have been dramatically reduced. Instead of absorbing this
successful record of risk reduction and environmental improvements,
many Federal agencies are manufacturing science to support more and
more onerous regulation.
Science is an essential tool in the environmental arena. The
distinction between science and policy, however, is critical to any
consideration of the accountability of government science. Science
should never dictate a policy conclusion. Under our form of government,
the popularly elected representatives serving in Congress are the final
policymakers.
Questions Submitted by Congressman Raul Grijalva
Question 1. Though questions about Federal and foreign funding are
asked of non-governmental witnesses before they testify, no questions
are asked about private funding.
1a. Have you received funding from any for-profit sources outside
your Texas Public Policy Foundation income, including but not limited
to grants, sponsored travel, speaking fees, compensation for writing,
in-kind services, or any other services between 2010 and 2015? Do you
solicit funding for the Texas Public Policy Foundation? If so, from
whom have you solicited funding between 2010 and 2015?
Answer. I do not solicit funding for the Texas Public Policy
Foundation.
I already have complied with the financial disclosure rules adopted
by the U.S. Natural Resources Committee.
1b. Would you support, in principle, a change in disclosure
policies for congressional witnesses to include requirements for
disclosure of private funding? Why or why not?
Answer. I do not have an opinion on financial disclosure policies
for congressional witnesses.
______
Mr. Gohmert. Thank you so much, Mrs. Hartnett White.
At this time we will hear from the Honorable Ms. Beckett.
STATEMENT OF THE HONORABLE CLARA BECKETT, BASTROP COUNTY
COMMISSIONER, PRECINCT 2, BASTROP, TEXAS
Ms. Beckett. Honorable Chairman and members of the
committee, thank you for having me here today. My name is Clara
Beckett. I am a County Commissioner over in Bastrop County,
Texas. This is where the greatest, most disastrous fire in
Texas history, and the third worst fire in U.S. history,
occurred in September of 2011.
The fire totally destroyed 1,700 homes and the entire fire
occurred within federally listed critical habitat of an
endangered species. Compliance with the Endangered Species Act
turned out to be our greatest challenge, and what I and others
in the county referred to as the ``disaster within the
disaster''.
The threats to public safety were vast. A Presidential
disaster was declared, and FEMA public assistance was approved
with a cost-share component. Bastrop County would be
responsible for 25 percent of all the debris cleanup costs.
The ESA has a unique requirement in that any Federal agency
conducting activities where an endangered species could be
impacted has to consult with the U.S. Fish and Wildlife
Service, and they have to come up with certain findings to
ensure the protection of endangered species.
Initially, FEMA and the Service came up with a finding of
no effect. Work began in early November, and focus was on tree
removal on trees that could fall to public roadways.
Subsequently, FEMA requested additional consultation with the
Service. They sent letters in November and again in December.
The letters stated, in part, due to the emergency nature of
the event, the threat to public safety and help, the County of
Bastrop needs to proceed in an expeditious manner to remove
this material, and concluded a finding of no effect. The
concurrence from the Fish and Wildlife Service never came.
On January 10, 2012, a meeting was held at the JFO (I have
learned a lot of acronyms since this; that is the Joint Field
Office of FEMA), and a grave concern was expressed by the Fish
and Wildlife Service and its expert biologists, independent,
that tree removal going forward would result in an adverse
effect on the Houston toad unless we developed intense
avoidance and minimization measures. On January 27, FEMA
proposed, in consultation with the Service and their local
biologists, a plan that included a tentative set of measures.
The plan presented a monstrous challenge--again, the ``disaster
within the disaster''.
Bastrop has an intense understanding of the ESA. We are a
Section 10 permit holder for the Houston toad and are
intimately familiar with protecting species while facilitating
necessary governmental functions. We have successfully
implemented our plan for 10 years, and we not only accepted
this responsibility, we took ownership of it.
The consultation, on the contrary, between the Service and
FEMA had no accountable elected official input. Zero. No
consideration, to my knowledge, was given to the practicality
of the measures, the extent to which it would delay Bastrop
County, and what effect delays would present to the safety of
the public; nor would it provide any real scientific evidence
that would conclude the measures were necessary at all.
Every tree that was cut, fell, picked up, and hauled was
inspected by a team of qualified toad monitors, and any work
could not proceed until they said so. They were in charge.
Frustration was intense. The county was forced to rebid the
contract because the contractor refused to extend the contract
beyond the original terms. Ultimately, a half million trees,
vegetative debris, was collected. This is the volume of a
football field 30 stories tall. It was a big task.
The project was delayed at least 10 months due to these
measures. This is a conservative estimate. Nearly a year, when
a family is concerned for their safety, is an eternity to them.
I personally expected tragedy every day. Fortunately, thank
God, there was no more loss of life. There are a lot of stories
I could tell you, individual stories about families.
The biggest concern to me was the fact that there were a
thousand homes that still remained intact within the burn area,
and those families needed to be kept safe. It is one thing to
hold up somebody from rebuilding your home, but it is another
that they cannot be safe in their home. I know people that the
fathers stayed in the home and the families stayed elsewhere.
Others did not have that choice and just prayed for the best
every day.
We recognize the ESA comes with a financial impact, and
protection of the species is our responsibility as a society;
but during a federally declared disaster and authorized by the
Stafford Act, by definition these threats pose a threat to
public safety. The ESA must take a back seat to public safety.
Respectfully submitted. Thank you.
[The prepared statement of Ms. Beckett follows:]
Prepared Statement of Clara Beckett, Bastrop County Commissioner,
Bastrop, Texas
Honorable Chairman and members of the committee, on September 4,
2011, many lives where changed forever in Bastrop County and the state
of Texas and touched many lives throughout the country. All hoping that
Hurricane Lee would bring desperately needed rainfall and relief to the
drought of record in Central Texas, he only brought the final blow to
the perfect storm; a 30 mile per hour hot wind. Emergency personnel,
and everyone in the region was anticipating the worst. Numerous fires
broke throughout central Texas during this time. The fire first called
into the Bastrop County Sheriff's 911 office at 2:21 p.m. from a
resident of the neighborhood known as Circle D was dispatched to the
Bastrop Fire Department. The fire suppression effort never remotely
stood a chance and the quick decision making of emergency personnel
saved many lives. What became known as the Bastrop County Complex Fire
caused the immediate evacuation of thousands of our residents and
resulted in the destruction of 1,677 residential dwellings, the most
destructive fire in Texas history and the third most destructive in
U.S. history. There were 34,000 acres of the Lost Pines forest that
succumbed to the massive fire. The entire burn area also occurred
entirely within federally designated Critical Habitat of the Houston
Toad.
The President of the United States signed the Major Disaster
Declaration, FEMA-4029-DR-TX on September 9, 2011. Six hundred
firefighting personnel on the ground assisted by an aerial attack for a
fire which was not declared 100 percent contained until October 11,
2011. All residents were given the authorization to re-enter the still
smoldering area on day 14. Given the speed and intensity of the fire
and the density of residential development, I personally presumed many
deaths had occurred. The fire resulted in the death of two souls. The
attached Fire Progression Map illustrates the massive speed and
intensity of the initial ignition as well as two later ignitions.
During the emergency response period of fire suppression, the
Endangered Species Act (ESA) was given due consideration. Each morning
and evening at the Incident Command Center, shift briefings by the
Unified Command (Federal, State and Local) included instruction and
guidance to personnel in an effort to heightened awareness of the
potential presence of the endangered Houston toad on the ground.
Fortunately, the ESA did not prove to hamper the firefighting efforts.
However, after the firefighters left and the fire was declared
contained, compliance with the ESA proved to be our greatest challenge
and challenges were varied, unique and abundant. The fact that the
majority of the fire occurred on private property and occurred entirely
within Federally Designated Critical and Potential habitat of an
endangered species presented what I and many others in Bastrop County
refer to as, the disaster within the disaster. This fire was unlike any
that FEMA, the state of Texas or our rural county had ever dealt with.
The threats to public safety were vast. Homes that survived the fire
and public roadways were now threatened by tens of thousands of pine
trees burned by the fire that remained standing and at any time could
fall and destroy property and take lives. Piles of rubble, including
rock and brick veneer, needed to be removed to prevent vectors for
snakes and rodents.
The Disaster declaration was amended numerous times, the last being
on November 3, 2011, and provided for Individual Assistance (IA) and
Public Assistant (PA). The PA was approved for eligible applicants for
75 percent financial reimbursement for all eligible activities
authorized by the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, P.L. 93-288, as amended.
Bastrop County was determined to be eligible along with two utility
providers. In anticipation of the approval of Public Assistance,
specifically, debris removal, Bastrop County went to work immediately
performing damage assessments, procuring temporary debris management
sites, environmental clearances and hiring a qualified monitoring
company as well as a qualified debris removal contractor. Bastrop
County officials meticulously followed all local, state and Federal
procurement laws, as assuring compliance was critical to the mission.
The cost of the debris removal was estimated to be $20 million and
Bastrop County would be responsible for paying 100 percent of those
costs up front and we were fully aware that we could ill afford to do
anything that would put the eligibility of 75 percent reimbursement
from FEMA at risk. Bastrop County's 25 percent responsibility was
crippling to our fund balance and cash-flow was an incredible
challenge.
The ESA requires either an informal or formal Section 7
consultation with any Federal agency--in this case--FEMA and must
conclude that the proposed activities funded by FEMA have ``no affect''
or ``are not likely to adversely affect'' or ``is likely to adversely
affect'' a federally endangered species. A finding of ``is likely''
results in a formal consultation that would have completely halted any
and all debris removal operations, if and until mitigation measures and
a complex plan could be developed. This would have been unfathomable.
FEMA initially made a finding of ``no affect'' for approval of the use
of temporary debris management sites and the USF&WS concurred.
Debris removal work began in earnest on November 7 and was focused
on dangerous tree removal within the County Rights-of-Way that could
fall onto the more than 100 miles of public roads within the burn area.
Subsequently, FEMA requested additional informal consultation with the
USF&WS on November 7 and again on December 13, 2011, providing more
details of the activities on the ground. The letter of December 13
stated in part: ``Due to the emergency nature of the event and the
threat to public health and safety, the County of Bastrop needs to
proceed in an expeditious manner to remove this material to previously
designated sites.'' And concluded in that request a finding of ``no
affect.'' The concurrence from the USF&WS of FEMA's finding was not
ever received. On the heels of the breading season of the Houston Toad
a meeting was held January 10, 2012 at the Joint Field Office of FEMA.
There was grave concern expressed by the USF&WS and local biologists
that activities going forward would result in an ``adverse effect'' on
the Houston Toad unless we could develop intense avoidance and
minimization measures. On January 27 FEMA proposed, in consultation
with the USF&WS and local biologists, an extensive set of avoidance and
minimization measures for all activities as well as a detailed Houston
Toad Monitoring Plan. The USF&WS sent their concurrence letter to FEMA
on February 1, 2012. From that day forward all debris removal
activities would be conducted under this intense set of procedures and/
or similar variations as deemed necessary as work activities varied in
nature. We continued to work within these parameters on all projects
moving forward which involved any Federal dollars and are still today
working with these procedures on Recovery projects. The avoidance and
minimization measures established in this informal Section 7
consultation, set a monstrous challenge before the county and its
contractors. What seemed to me, on the day the fire occurred up until
this time to be the biggest challenge I and others would face in our
lifetimes, just got monumentally more difficult. It felt like the blow
to the chest I felt when I was 8 years old and shot my grandfather's
double barrel shot gun, only that pain simply left a bruise for a few
days. This new set of circumstance has left its mark to this day. The
January 27, 2012 and the February 1, 2012 letter to initiate
consultation from FEMA to the USF&WS and the concurrence from the
USF&WS letter are attached. The consultations were updated again in
January of 2013 and again in June of 2013 and further avoidance and
minimization measures were added.
Bastrop County and our citizens have an intense understanding of
the ESA and history of compliance. Bastrop County is a Section 10
permit holder with a Habitat Conservation Plan for the Houston Toad and
are intimately familiar with the purpose and need for minimization and
avoidance measures that reasonably assure compliance with the ESA while
facilitating necessary county functions. We successfully implemented
our permit many years before the fires occurred and for over 10 years
and have had full-time staff dedicated to protecting the species and
assuring compliance with all aspects of our permit. We work with
thousands of landowners who also participate in the Habitat
Conservation Plan on a voluntary basis. The plan took many years to
develop and I believe was developed with solid thought and the best
science available. The county was intimately involved for many years
during its development.
In complete contrast, the consultation between the USF&WS and FEMA
that was implemented for the remaining duration of our disaster had no
accountable elected official from Bastrop County input. As a result, no
consideration, to my knowledge, was given to the practicality of the
measures of the plan, the extent to which it would delay Bastrop County
in our efforts and what ``affect'' delays could potentially present to
the health and safety of the public or provide any real scientific
evidence that would reasonably conclude the measures were necessary.
A team of biologists, as regulated and determined to be qualified,
by the Houston Toad Monitoring Plan and subsequent updates to the Plan,
were deployed and the debris removal proceeded under the newly
established avoidance and minimization measures and as updated. As
stated in the letter of concurrence from the USF&WS, ``Implementation
of these measures is a condition of Federal funding.'' It was very
clear to me that whatever the document said is what we had to do
regardless of anything. If the USF&WS and FEMA concurred that Bastrop
County had to implement these measures we had absolutely no other
options. Essentially every tree that was cut/fell/picked up/hauled and
every pile of rubble that was picked up and hauled was inspected by
qualified Houston Toad monitor prior to any work proceeding.
Frustrations were intense and the debris removal contractor was under
great distress from a production standpoint. The original contract for
debris removal was for a duration of 12 months. The contractor at the
end of the 12-month period requested an additional $2 million to
complete the project via increased unit price costs. Bastrop County was
forced, due to state procurement law, to re-bid the entire remaining
work items and a contract was awarded to a second contractor. This
caused a further 2-month delay in debris removal operations.
Bastrop County and its debris removal contractors ultimately:
Cut 53,000 trees which equated to a volume of about 530,000 cubic
yards of vegetative debris. By way of a physical comparison this volume
would cover a football field 300 feet in height.
Removed/consolidated and hauled for re-cycling 100,000 tons of
rubble, covering the size of a football field 45 feet in height.
From the beginning of the operations on November 7, 2011 through
February 1, 2012 under the initial consultation the county cut and
removed 14,367 trees. From February 2, 2012 through July 31, 2013 the
county cut and removed 35,785 trees under the strict avoidance and
minimization measures and updated measures. If one calculates the trees
per calendar day and compares the production rates for the time frames
referenced above. The project was delayed 311 days. This is a
conservative estimate as the month of January 2012, during the
initially cutting, was the wettest month in Bastrop County in the
proceeding 4 years. The initial ramp-up also effected the initial
production numbers. My strong belief is that the debris removal
operations could have been completed close to 1 year earlier than it
did. I also believe that every elected official in Bastrop County,
staff and FEMA personnel on the ground would agree that the Toad
Monitoring significantly delayed completion.
Three hundred eleven days when a family is concerned for their
safety due to a burnt tree standing 75 feet tall on an adjacent
abandoned property is an eternity to them; 311 days where trees could
fall into the over 100 miles of county roads within the burn area is an
eternity to the public and the county personnel tasked with keeping the
public safe as well as the removal. I personally expected tragedy every
day the debris removal was prolonged. Many trees did fall onto
structures, fences and roadways; however, and most assuredly by the
grace of God, we escaped any additional loss of life. There are many
stories that I could share with the committee about the human stresses
that I personally witnessed and the delay to so many wishing to move on
with their lives and many stories I am sure I never knew or heard
about. The standing dead trees were a constant reminder to fire
victims, survivors, neighbors, friends and my constituents of the fire
and the continued dangers to residents. It was also a constant reminder
of the environmental destruction. At the end of the day, it is my
belief that the delays ironically proved to be an impediment to
environmental recovery. Removing this clear threat to human safety and
health should have been the first and foremost priority, but I can tell
you firsthand it was not. The protection of the Houston Toad was
clearly the first priority.
Bastrop County had a population of approximately 74,000 people at
the time of the fire. The decision to rebuild for the 1,700 households
that were destroyed, for many, hinged upon how long it would take to
make the neighborhoods safe. There were also over 1,000 homes that
remained intact within the burn area. We estimated that this number of
households was approximately 11 percent of the total population of
Bastrop County. Everyone knew someone affected. The quicker we could
get these trees removed the quicker the emotional, ecological and
economic recovery could begin. The 1,000 dwellings and the people
living within the burn area needed to be immediately protected. Many
families were so concerned for their safety the decision was made to
have the father remain at the house, to protect the contents, while the
mother and children stayed with friends or family, others simply had no
choice but to remain in their homes and pray for the best. Please see
the attached picture that I personally took on April 11, 2013, 19
months after tree removal had commenced. This is one example of the
many families that contacted me concerned with trees on adjacent
properties threatening their safety and welfare. Delay was the worst
case scenario, yet in order to comply with the ESA, we were forced to
endure it. County elected officials, county staff, our contractors and,
I believe, even FEMA personnel, were dismayed and frustrated with the
tree removal process. The electric utility company and their staff were
similarly frustrated. With the very limited resources of Bastrop
County, we knew that every detail of compliance with local, state and
Federal law and processes must be adhered to. I believe that under
similar circumstance where debris removal did not involve this intense
ESA compliance element, the process would be a significant challenge
for any city or county in the country and we are a very small
jurisdiction with limited staff. I often felt and compared the feeling
I had to trying to breathe through a coffee straw.
I have chosen to not, in detail, enumerate the significant direct
and indirect costs of compliance, which many would certainly agree was
unacceptable. The direct and indirect costs to the Federal Government
and Bastrop County was well into the millions.
While the ESA is understandably not free and the protection of
endangered species is our responsibility as a society, it is my
conviction that change must happen. Under the conditions of a
Presidential Federally Declared Disaster and the eligibility for FEMA
IA and PA, authorized under the authority of the Stafford Act and by
definition the activities funded by the Federal Government must present
a ``threat to public health and safety,'' compliance with the ESA must
take a temporary back seat to removing those threats. We simply cannot
continue to enforce a Federal law that impedes the removal of clear and
immediate threats to human life.
Attachments:
1. Fire Progression Map
2. January 27, 2012 Letter--FEMA Consultation Request
3. February 1, 2012 Letter--USF&WS Concurrence
4. Picture of a Child
ATTACHMENT 1
Balstrop Complex Fire Progression
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
ATTACHMENT 2
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
January 27, 2012
Ms. Edith Erfling
Field Supervisor
U.S. Fish and Wildlife Service
17629 El Camino Real, Suite #211
Houston, TX 77058
Dear Ms. Erfling:
This letter is to initiate informal consultation between the
Federal Emergency Management Agency (FEMA) and your office regarding
ongoing work associated with the recovery from the Bastrop County
Complex Fire, which was included as part of the major disaster
declaration FEMA-4029-DR-TX. This letter has been revised to capture
discussions between FEMA and your office on January 20, 2012, and
following a site visit in Bastrop with Jeff Hill of the U.S. Fish and
Wildlife Service (USFWS) on January 25, 2012. It also follows an
initial consultation letter, dated November 7, 2011, that was submitted
to the Austin Ecological Services Field Office and a subsequent letter,
dated December 13, 2011, regarding FEMA's ``no effect'' determination
for the impact of debris removal activities to the federally endangered
Houston toad (toad; Bufo houstonensis) in Bastrop County. In addition,
on September 19, 2011, FEMA requested and on September 23, 2011,
received USFWS concurrence on proposed debris disposal sites within
Bastrop County.
As environmental conditions change and the toad is likely to become
more active in Bastrop County, and as FEMA's emergency work activities
are going beyond the initial predicted timeframe for completion, FEMA
is requesting informal consultation with your office. Per conversations
with Adam Zerrenner, Field Supervisor at the Austin Ecological Services
Field Office, FEMA is to consult with the Clear Lake Ecological
Services Field Office regarding the toad and FEMA work in Bastrop
County.
Realizing that FEMA Public Assistance and Individual Assistance
efforts were proceeding into the toad chorusing season, FEMA arranged
for a meeting on January 10, 2012, among FEMA program and environmental
staff; applicants, including Bastrop County and Bluebonnet Electric
Cooperative; the Texas Division of Emergency Management; USFWS; Texas
Parks and Wildlife Department (TPWD); and representatives from Texas
State University, to discuss ongoing FEMA-eligible activities, toad
emergence and breeding activity status, potential mitigation measures,
and consultation approaches under the Endangered Species Act.
FEDERAL ACTIONS INCLUDED IN THIS CONSULTATION
Approximately 95 percent of the burn area associated with the
Bastrop County Complex Fire is located within designated critical
habitat for the toad. Therefore, much of the FEMA-eligible work under
various funding authorities is taking place within toad critical
habitat. A map has been included that shows the burn area, the
designated critical habitat for the Houston toad, and the temporary
debris staging sites being utilized by Bastrop County and Bluebonnet.
Individual Assistance
Under FEMA's Individual Assistance Program, approximately 73
temporary housing units with associated temporary electric poles have
been placed on residential lots within Bastrop County to provide short-
term housing for those impacted by the wildfire. Most of the units are
located in the Circle D-KC Estates area north of Bastrop, with others
located just south of Bastrop State Park and in Tahitian Village. No
additional units are anticipated to be placed within the burn area.
These units will be decommissioned and removed from residential sites
within various timeframes depending on the homeowners' needs. This
consultation covers removal of units beginning in January 2012 and
through the end of toad breeding season, June 1, 2012. FEMA
approximates that between 5 and 1O units will be removed during this
timeframe. Removals will be conducted during daylight hours. FEMA will
make separate determinations for removals that continue from June 1,
2012, through the remainder of the year and into early 2013. Removals
after June 1, 2012 are therefore not included in this consultation.
Public Assistance
Under FEMA's Public Assistance program, eligible applicants,
including Bastrop County, Bluebonnet Electric Cooperative, and TPWD,
have requested federal funding assistance for eligible emergency work
related to recovery from the fire. Debris on or along roadways may
impede the safe passage of emergency vehicles and local traffic, and
debris piles on public and private property may also provide habitat
for vectors of disease. Therefore, FEMA intends to provide assistance
for eligible Private Property Debris Removal (PPDR) and removal of
burned, dead, hazardous trees and other debris from public rights-of-
way (ROW) in Bastrop County. Most of this work is being conducted along
Highway 21, Highway 71, within the Circle D-KC Estates, and within
Tahitian Village (see enclosed map).
The PPDR operation in Bastrop County includes removing burned,
dead, and hazardous trees within 50 feet of the home and/or driveways.
In some limited cases, debris crews will need to remove small
quantities of building rubble if it impedes the entrance of debris
removal equipment along entrance driveways. As of this date, FEMA
projects that approximately 650 home owners will request assistance
with debris removal on private property in total. Work has been
completed on many of these sites, and at this time FEMA is estimating
that about 200 of these 650 sites still need to be worked. Trees are
being hand cut and skidded to driveway areas. Contractors are using
bobcats, bucket trucks, and self-loading trucks with grapple hooks to
remove the debris. Heavy equipment is remaining on driveways. The PPDR
operation is running 7 days a week and work is being conducted only
during daylight hours. The application period for PPDR will remain open
through February 19, 2012, and PPDR work is estimated to conclude by
the end of March 2012.
In addition, some private property owners clean their property and
move disaster-generated debris such as brush and vegetation and
building components and contents to the public road ROW. FEMA and its
applicants have little to no control over when the debris is brought to
the roadsides. Most ROW debris is being removed from the roadway via
self-loading trucks with grapple hooks. Heavier construction and
demolition debris must be removed with front end loader equipment.
Dead, burned trees within road ROWs have also accumulated and are a
potential hazard. Arborists are making determinations of which trees
are dead and marking them for contractors to remove; trees deemed at
least partially alive are marked and will be re-evaluated at a future
date. Trees are being hand cut. There should be little to no heavy
trucks or equipment leaving roadways onto undisturbed ground for tree
removal activities along ROWs. As of the date of this letter, most ROW
work is complete and FEMA crews are responding to debris as it is
periodically brought to the ROW by property owners. Finally, stump
grinding within the public ROW may become an eligible FEMA-
reimbursement activity if the stumps are determined to pose a safety
issue. Stumps would be ground down to be level with the adjacent grade
and would not be excavated or otherwise mechanically removed. The ROW
debris clearing operation is running 7 days a week and work is being
conducted only during daylight hours.
All PPDR and ROW debris will be taken to one of the five previously
approved debris sites or will be recycled. Heavy equipment is removed
from private property and the public ROW at the conclusion of each work
day.
Bluebonnet Electric Cooperative is also working to remove debris
inside and outside of its maintained utility ROWs. Some of this work,
including removal of debris in the ROW that presents a safety hazard
and threat to continued electric service, is eligible for FEMA
reimbursement. According to Bluebonnet, FEMA-funded tree cutting within
the ROW is complete and removal of debris on the ground is about 70
percent complete within the maintained ROW. Heavy equipment is being
used to collect and haul the debris, and equipment will remain within
the maintained ROW during the workday. Heavy equipment is removed from
Bluebonnet ROWs at the conclusion of each work day. This work is
estimated to be completed by the end of March, 2012. Bluebonnet is also
conducting tree removal, tree trimming, and above-ground reconnection
of electricity service to structures on private property where trees
present a threat to the provision of electric service. Trees are being
hand cut and hauled off site via equipment that will remain on roadways
and driveways. Some of this work may also be eligible for FEMA
reimbursement. It is difficult to estimate a completion date for work
on private property as customers call in on their own timeframe for
this service. Bluebonnet's operation is running 5 days a week and work
is being conducted only during daylight hours.
TPWD is conducting work within Bastrop State Park. Some debris
removal activities at the park will be reimbursable through FEMA.
Specifically, TPWD is conducting hazardous tree removal along park
roadways using fella-bunchers, skidders, loaders, and chippers.
Equipment is operating either on the roadways, or within immediately
adjacent roadside cutting areas. Larger trees are being sent to a mill
to be used for lumber and the remainder of the vegetative debris is
being chipped on site and used for erosion control in the park.
Hazardous tree removal is reportedly 50 percent complete as of January
11, 2012, and TPWD estimates that it will be completed by the end of
February, 2012. TPWD has prioritized work such that they are moving
away from known toad habitats as chorusing season approaches.
Therefore, the remaining tree removal work is likely to be in areas of
the park that are uninhabited by the toad and where toads have not been
documented in the last 6 years. The TPWD debris clearing operation is
running up to 7 days a week and work is being conducted only during
daylight hours. In addition to implementing the best management
practices (BMPs) developed by the USFWS (2011a and 2011b), TPWD is
conducting real-time monitoring for toad emergence throughout the
project area as work proceeds.
Consultation on permanent work repair projects, such as culvert
replacement and building reconstruction under the FEMA Public
Assistance Program will be conducted as necessary on an individual
basis at a future date and is not included in this consultation.
HOUSTON TOAD STATUS IN PROJECT AREA
The toad depends on healthy and mature forest ecosystems with mixed
species composition, significant canopy cover, an open understory layer
with a diverse herbaceous component, and breeding areas (ephemeral wet-
weather ponds and other water features, such as stock tanks, creeks,
streams, wetlands, seeps, and springs) with shaded edges. They are most
commonly found within the surrounding upland habitat adjacent to
breeding sites. The toad uses drainages and riparian areas for
dispersal and movement. The edges of breeding ponds are used by
emerging juvenile toadlets after they metamorphose from their larval
(tadpole) stage (USFWS, 2011a).
This species is inactive during hot, dry seasons and during the
coldest months. Most breeding occurs from February to April, when the
minimum air temperature is above 14 C. Breeding has been reported as
late as June. Breeding habitat consists of a body of water supporting
the reproductive and larval toad life stages. Eggs and larvae develop
in shallow water. For successful breeding, water must persist for at
least 60 days. Larvae hatch in 4 to 7 days and metamorphose in 3-9
weeks, depending on the water temperature. This species locally
migrates between breeding and non-breeding habitats. The adjacent
uplands support adults year round and provide patch connectivity
outward from the ponds for juvenile dispersal (USFWS, 2011c). The toad
tends to occupy areas with 60 percent to 100 percent canopy cover
(Forstner et al. 2011). Upland forests in the Lost Pines area of
Bastrop County serve as occupied and dispersal habitat for the Houston
toad and cover/shade is a necessity to facilitate distribution without
desiccation (LPRT 2011).
Bastrop County has been surveyed consistently from year to year
since the 1970s. By 2003, Dr. Michael Forstner of Texas State
University estimated the number of Houston toads in Bastrop County to
be between 100 and 200 individuals. The 2011 Houston toad breeding/
survey season ended May 2011 with only six Houston toads detected in
Bastrop State Park, two Houston toads detected on the Griffith League
Ranch in Bastrop County, one Houston toad detected south of the Texas
State Highway 290 corridor in Bastrop County, one Houston toad detected
in Austin County, one Houston toad detected in Lavaca County, and one
Houston toad detected on Cade Lakes in Burleson County (USFWS 2011c).
No reproductive events were observed during the 2011 breeding season,
despite extensive survey attempts (Forstner and Dixon 2011).
Prior to the Bastrop County Complex Fire, the Houston toad range in
Bastrop County was in poor condition as a result of what is speculated
to be the worst 1-year drought on recorded history for this area (LPRT
2011). Approximately 41 percent of the high suitability habitat for the
Houston toad within Bastrop County was moderately to heavily burned
(Forstner et al. 2011). Though the toad may have adapted strategies to
survive wildfire events, the extent of the impact of the Bastrop County
Complex Fire on toad survival and population numbers is not yet known.
FEMA is currently working with Dr. Forstner and is being advised of
toad emergence and activity through his monitoring efforts throughout
Bastrop County.
AVOIDANCE AND MINIMIZATION MEASURES
The following avoidance and minimization measures will be
implemented within the burn area for the FEMA-funded activities
described above in order to minimize impact to the toad. These measures
have been adapted from the USFWS BMPs (2011a, 2011b); the Lost Pines
Habitat Conservation Plan (LPHCP; 2007) and the Bastrop Utilities
Habitat Conservation Plan (2005); and discussions at the January 10,
2012 meeting discussed above; and subsequent phone calls and meetings
with the USFWS on-site in Bastrop. Implementation of these measures
will be a condition of federal funding.
Individual Assistance Projects
For any removal of temporary housing units from the date
of this consultation and through the end of breeding
season, June 1, 2012, FEMA will deploy a Houston toad
monitor that is a qualified biologist and that will be
permitted in identifying, locating, handling, removing, and
transporting the Houston toad. Monitors will work in
accordance with the attached Houston Toad Monitoring Plan.
Should a toad be encountered during removal of a unit, work
must cease immediately, the biological monitor will secure
and relocate the toad; and the U.S. Fish and Wildlife
Service's Clear Lake Ecological Services Office will be
contacted at (281) 286-8282.
Public Assistance Projects
FEMA will deliver an introductory training course on
Houston toad life cycle and habitat requirements for FEMA
staff, the applicants, and key personnel of the debris
removal work crews. Estimated delivery of this training is
the week of January 30, 2012, with additional sessions to
follow as necessary.
For work conducted from the date of this consultation and
through the end of breeding season, June 1, 2012, FEMA will
deploy a team of Houston toad monitors that are qualified
biologists and that will collectively be permitted in
identifying, locating, handling, removing, and transporting
the Houston toad. Monitors must work in accordance with the
attached Houston Toad Monitoring Plan. Should a toad be
encountered during debris activities, work must cease
immediately, the biological monitor will secure and
relocate the toad; and the U.S. Fish and Wildlife Service's
Clear Lake Ecological Services Office will be contacted at
(281) 286-8282.
For PPDR, cut trees must be removed from the site in this
order of priority:
-- Cut trees will be loaded and hauled away at the end of the
work day and no logs will be left behind;
-- Cut trees will be stacked on hard surfaces (concrete/caliche
driveways or structural foundations);
-- Cut trees will be kept off natural ground via staging on
horizontal support structures to minimize the creation of
artificial toad habitat. If other logs are used to serve as
horizontal supports, a toad monitor must inspect the logs
that are in contact with the ground for the presence of
toads before those logs can be removed.
To minimize the creation of toad habitat in non-desirable
locations such as rights-of way (ROW), every effort will be
made to remove debris piles within 48 hours of the debris
being deposited.
Debris piles will be, to the greatest extent possible,
either hand loaded and/or grapple hook loaded.
Any mulch, chips, or other woody debris from tree removal
that is left on site must cover the forest floor in no more
than a 1 to 2-inch layer.
Soil disturbance, clearing, and operation of heavy
equipment (for example, tractors, large trucks, bulldozers,
skidders) will not occur within a 200-foot distance from
potential Houston toad breeding sites and riparian areas at
any time of year. These may include ephemeral wet weather
ponds and other water features, such as stock tanks,
creeks, streams, drainages, wetlands, seeps, and springs.
For trees that pose an immediate safety threat and that
occur within 200 feet of a potential Houston toad breeding
site (ponds, stock tanks, creeks, streams, wetlands, seeps,
and springs that are within or immediately adjacent to a
forested area) or riparian area, tree removal activities
must be conducted in consultation with a qualified Houston
toad monitor and removal activities cannot begin until that
monitor is on site. Trees must be hand cut.
Hand cutting can occur within a 200-foot radius of a
potential Houston toad breeding site between July 1 and
December 31 (outside of the Houston toad breeding season
and emergence period) without a Houston toad monitor.
The number and size of entry and exit points for heavy
equipment to move into and out of forested areas will be
kept to the minimum needed for conducting safe and
effective tree and debris removal operations, while also
minimizing soil disturbance.
Streams, riparian zones, wetlands, and areas near
potential Houston toad breeding sites will not be used for
staging equipment or refueling. Equipment must be stored,
serviced, and fueled at least 200 feet away from these
sensitive areas.
Gasoline- and diesel-fueled field equipment must be
inspected daily for signs of fuel or hydraulic leaks; such
leaks must be repaired promptly and measures will be taken
to prevent soil contamination. All hazardous materials
related to construction or maintenance activities will be
properly contained, used, and/or disposed of.
Clearing for all utility lines and other structures will
be limited to the minimum amount that allows for the safe
completion of a particular project. Hand-clearing of
vegetation will be used when practical. The use of track
equipment for clearing will be minimized.
Following debris removal activities, the applicants will
ensure that equipment used on undisturbed ground has not
resulted in potential artificial breeding sites. For
example, large tire ruts will be smoothed so as not to
create an undesirable breeding pond along a ROW.
In addition to being subject to the conditions above, some
activities, such as those on participating private property sites or
within the Bluebonnet Electric Cooperative permitted area, must also
comply with habitat conservation plans (HCPs) that are already in
place, including the Lost Pines Habitat Conservation Plan (LPHCP; 2007)
and the Bastrop Utilities Habitat Conservation Plan (2005). While some
of the PPDR work will occur on property/landowners enrolled in the
county's LPHCP which are covered for incidental take; others are not
enrolled. For instance, under their HCP, which covers routine repair,
emergency repair, and maintenance of aboveground distribution lines
within the permitted area, Bluebonnet distributes a Houston toad
information brochure to contractors and landowners that are involved in
maintenance work.
DETERMINATION
Toad emergence and breeding is triggered, in part, by rainfall and
warm nighttime temperatures. FEMA is communicating regularly with Dr.
Forstner at Texas State University to remain informed of his team's
monitoring efforts in toad habitat. FEMA is working under the
assumption that weather conditions conducive for toad emergence and
breeding could materialize any day now, and the toad could begin
emerging and breeding very soon.
Upon emergence, there is potential for adult toads to be present
among debris piles that are being removed on ROWs and private property.
Temporary debris piles, especially brush and vegetative debris, may
provide ``artificial'' habitat for the toad. It is less likely that the
toad would shelter within larger construction and demolition debris.
There is also potential for toads to seek shelter under temporary
housing units that have been installed at residential lots given that
the forested habitat no longer provides adequate shade or cover for the
toad after the fire. In addition, some tree removal and trimming
activities may reduce the already compromised overstory that provides
shaded habitat for the local migration of the toad. However, tree
removal and trimming activities being funded by FEMA are restricted to
dead or severely damaged trees that pose a threat to human safety. The
use of debris removal equipment on undisturbed ground may create
unsuitable and artificial habitat for the toad by creating ponding
areas. Measures are being taken to minimize the work that is conducted
immediately adjacent to breeding areas (ephemeral wet-weather ponds,
creeks, streams, wetlands, seeps, and springs) during chorusing season.
Based on a review of the Houston toad and its habitat requirements;
the assumption that adult toad population numbers are likely low in the
project area based on recent past population surveys and uncertainty
about survivorship following the fire; the emergency nature of the work
to be conducted; the duration and location of work; the implementation
of required avoidance and minimization measures, including extensive
monitoring by qualified biologists; the additional implementation of
various conservation measures under applicable HCPs; and meetings and
conversations with USFWS staff and Houston toad specialists, FEMA has
determined that the federally funded work described above may affect,
but is not likely to adversely affect the Houston toad in Bastrop
County.
Furthermore, FEMA contends that the ``no action'' alternative of
leaving the debris along roadsides may result in an adverse effect to
the toad by providing undesirable habitat and encouraging toads to
occupy high risk areas along roadways. Creating habitat in these areas
might contribute to direct mortality due to roadway traffic (USFWS
2011c).
FEMA requests your concurrence with this effect determination and
input on any additional conservation measures required to ensure
accuracy of this determination. Thank you for your attention and
assistance. Should you have any questions, please contact FEMA
Environmental Specialist, Dorothy Weir at Dorothy.Weir@fema. dhs.gov or
at 940-435-9275.
Sincerely,
Kevin Jaynes, CHMM
Regional Environmental Officer
FEMA Region 6
Attachment: Houston Toad Monitoring Plan
****
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Houston Toad Monitoring Plan
for
Activities Covered in FEMA Letter Dated January 27, 2012
Bastrop County, Texas, FEMA-DR-4029-TX
(Revised March 15, 2012)
Monitor Qualifications: Monitors will hold a 10(a)(1a) permit.
Individually, they must be able to locate and identify wild Houston
toads. Collectively they must be able to handle, remove, and transport
wild Houston toads and be federally permitted and permitted within the
State of Texas to do so. The monitors will be prepared to initiate
monitoring activities immediately and will be appropriately equipped to
conduct the activities described above. As of March 15, 2012, fourteen
toad monitors are rotating daily to fulfill the need to have six
monitors in the field in Bastrop on any given day. Two of the monitors
hold permits to locate and identify wild Houston toads. Twelve of the
monitors are permitted to handle, remove, and transport wild Houston
toads.
Monitor Hierarchy: Houston toad monitors will be directed by FEMA Task
Monitor, Dorothy Weir. Lead monitors, in order of authority, are Mike
Forstner, James Dixon, Jake Jackson, and Jim Bell. The lead monitors
hold permits that allow them to handle and relocate the toad. These
monitors will have supervisory authority over the other monitors
regarding decisions in the field.
Number of Monitors: Fourteen toad monitors will be working on a
rotational basis in Bastrop County on FEMA-related operations. FEMA has
the capacity to fund six toad monitors on any given day. On average,
two toad monitors will work with Bluebonnet Electric Cooperative and
four monitors will be assigned to Bastrop County to assist in debris
removal along rights-of-way (ROW) and on private property. These
monitors will also be tasked as needed to oversee removal of temporary
housing units and to assist with site visits to proposed FEMA permanent
work projects within critical habitat in Bastrop County. At this time,
debris removal work in Bastrop State Park is complete or near
completion and Greg Creacy has been monitoring per the February 1, 2012
consultation as approved by USFWS. The number of FEMA-funded monitors
working in the field on a given day can be increased or decreased
pending recovery effort success and speed of completion. FEMA will
coordinate additional individual monitors and their qualifications
through the USFWS Clear Lake Ecological Services Field Office.
Work Hours: Monitors will work when the debris crews are working, which
is dependent on weather conditions and availability of personnel and
equipment. At this time, Bastrop County debris operations run 6 days a
week. At this time, Bluebonnet operations run 7 days a week. Work is
only conducted during daylight hours, which averages about 10-12 hours
a day. Precise scheduling will be contingent on field activities. Daily
work assignments will be coordinated with FEMA Public Assistance and
Environmental staff, the applicants, and their contractors.
Work Duration: Monitors will work through breeding season until FEMA
operations included in the January 27, 2012, consultation letter are
completed, or until such time in the year that FEMA is able to make a
``no effect'' determination for debris removal activities. Monitors
began work in the field on February 2, 2012, when there was an initial
indication of toads chorusing in the wild. The period of performance
for monitoring can be shortened and/or extended depending on duration
of FEMA operations.
Work Plan and Prioritization: Monitors will be engaged with work being
done by Bastrop County (debris removal along rights-of-way (ROWs) and
on private property); Bluebonnet Electric Cooperative (debris removal
along utility ROWs and tree removal at private property); Texas Parks
and Wildlife Department (debris removal along ROWs within Bastrop State
Park); and by FEMA's Individual Assistance Program for the removal of
individual temporary housing units at residential sites. Work schedules
for the biological monitors will be based on daily situational input
from FEMA staff and work crews. Applicant implementation of the
avoidance and minimization measures in the February 1, 2012,
consultation letter, including adherence to this Houston Toad
Monitoring Plan, is a condition of federal funding. Monitors will
accompany work crews according to the following list of prioritized
FEMA activities:
Private Property Debris Removal (PPDR): Debris crews will
initially focus PPDR efforts in neighborhoods with higher
toad probability. In particular, areas north of Highway 21
in the Circle D-KC Estates will be worked as soon as
possible. Areas to the south and east of Bastrop State Park
will be the secondary focus area. Areas to the south of
Highway 71 are a third priority and Tahitian Village is the
last priority. Toad monitors can advise, assist, and
provide oversight regarding the prioritization of work
based on their expertise on known toad locations.
PPDR sites that are ready to cut have been assigned a monitoring
level of effort of easy, medium, or hard, which enables the
County to schedule cut sites appropriately. PPDR crews work
5 properties per day on average. Each morning, the Houston
toad monitor will arrive at their assigned PPDR site and
conduct monitoring for toads and potential toad habitat
based on the cut plan for that site, which is determined by
the County's contractor. The toad monitors are available to
provide guidance to the County on how best to implement
conditions that are specific to toad habitat. If no habitat
is present, PPDR is cleared to commence and must commence
that day or the following day, or the clearance becomes
null.
If potential toad habitat is discovered
at the site, the toad monitor will inspect the debris for
toads.
-- If no toads are identified in the potential
habitat on the site, including any small amount of
building rubble that may need to be removed to allow
the entrance of equipment, work can proceed in line
with the conditions in the consultation letter. If
ground contact debris that creates toad sheltering
habitat is left overnight at the PPDR site, the site
clearance becomes null and the site has to be monitored
for toad presence again before work commences.
-- If a toad is located, if permitted to do so, the
monitor will secure and relocate the toad according to
protocols associated with their permit. If the monitor
is only permitted for survey, they will call another
FEMA assigned monitor that is permitted for handling
and relocation of the Houston toad, and that monitor
will come to the site immediately to secure and
relocate the toad. The U.S. Fish and Wildlife Service's
Clear Lake Ecological Services Field Office will be
contacted at (281) 286-8282. If ground contact debris
that creates toad sheltering habitat is left overnight
at the PPDR site, the site clearance becomes null and
the site has to be monitored for toad presence again
before work commences.
For trees that pose an immediate safety threat and that occur
within 200 feet of a potential Houston toad breeding site
(field-verified ponds, stock tanks, creeks, streams,
wetlands, seeps, and springs that are within or immediately
adjacent to a forested area) or riparian area, tree removal
activities must be conducted in consultation with a
qualified Houston toad monitor and removal activities
cannot begin until that monitor is on site. Potential
breeding sites are likely to increase following periods of
heavy rains. Therefore debris crews should remain aware
that tree removal cannot begin within 200 feet of a
potential breeding site until a toad monitor is on site and
has evaluated and cleared the project area. Lead monitors
will assist in the identification of potential Houston toad
breeding sites and prioritization of tree removal in
proximity to potential Houston toad breeding sites.
Removal of Debris and Hazardous Trees Along Rights of Way: For
Bastrop County, much of this work has been completed and
work will be sporadic. As required, the Bastrop County toad
monitors will survey any ROW debris and will assist with
and provide oversight regarding prioritization of its
removal. The debris contractor will alert the toad monitors
to the location of ROW debris. The toad monitor will
evaluate and pre-clear debris removal work in certain areas
or pre-clear the removal of specific debris piles based on
their knowledge of toad habitat and toad activity
throughout the burn area. Once pre-clearance has been
completed, debris work can continue without the presence of
toad monitor during the removal operation, provided that
the monitor determines the site is clear and that debris
pickup occurs during the same work day. If the site is
examined by a monitor and the debris cannot be removed
until the following day, the inspection process must be
reinitiated.
FEMA-funded removal of debris on the ground within Bluebonnet
ROWs is estimated to be complete by March 31, 2012. The
toad monitor assigned to Bluebonnet will determine which
areas of Bluebonnet's remaining ROW debris areas are
located in higher probability toad areas. Bluebonnet will
work to remove debris in those areas as soon as possible.
The toad monitor will evaluate and pre-clear debris removal
work in certain areas or pre-clear the removal of specific
debris piles based on their knowledge of toad habitat and
toad activity throughout the burn area. Once pre-clearance
has been completed, debris work can continue without the
presence of toad monitor during the removal operation,
provided that the monitor determines the site is clear and
that debris pickup occurs during the same work day. If the
site is examined by a monitor and the debris cannot be
removed until the following day, the inspection process
must be reinitiated. Bluebonnet is continuing to receive
customer requests to cut and remove hazardous trees along
power lines at private property sites. These requests are
likely to continue through the summer of 2012. Toad
monitors are accompanying Bluebonnet cut crews to these
sites to monitor for toad presence and potential habitat
through the duration of the existing consultation.
Hazardous tree removal along ROWs in Bastrop State Park is
estimated for completion by early March 2012. The Texas
Parks and Wildlife Department (TPWD) has prioritized work
such that they are moving away from known toad habitats.
Therefore, the remaining tree removal work is likely to be
in areas of the park that are uninhabited by the toad and
where toads have not been documented in the last 6 years.
FEMA toad monitors will periodically confer with TPWD to
observe operations and review future work sites. FEMA
monitors will become involved at particular cutting sites
if they determine it is necessary based on known toad
locations within the park. The FEMA monitoring effort will
complement real-time monitoring that is already being
conducted by TPWD biologists.
For all applicants, for trees or debris that pose an immediate
safety threat and that occur within 200 feet of a potential
Houston toad breeding site (field-verified ponds, stock
tanks, creeks, streams, wetlands, seeps, and springs that
are within or immediately adjacent to a forested area) or
riparian area, tree and debris removal activities must be
conducted in consultation with a qualified Houston toad
monitor and removal activities cannot begin until that
monitor is on site. Potential breeding sites are likely to
increase following periods of heavy rains. Therefore debris
crews should remain aware that tree removal cannot begin
within 200 feet of a potential breeding site until a toad
monitor is on site and has evaluated and cleared the
project area. Lead monitors will assist in the
identification of potential Houston toad breeding sites and
prioritization of tree removal in proximity to potential
Houston toad breeding sites.
Removal of Temporary Housing Units: FEMA's Environmental Planning
and Historic Preservation (EHP) section will be alerted
several days prior to the scheduled removal of any
temporary housing unit and will schedule a toad monitor,
permitted to handle, remove, and transport the Houston
toad, to inspect the site for toad habitat or toad activity
immediately prior to and during removal. For any removal of
temporary housing units from the date of this consultation
and through the end of breeding, emergence, and dispersal
season, August 31, 2012, FEMA will deploy a Houston toad
monitor that is a qualified biologist and that will be
permitted in identifying, locating, handling, removing, and
transporting the Houston toad. Should a toad be encountered
during removal of a unit, work must cease immediately, the
biological monitor will secure and relocate the toad, and
the U.S. Fish and Wildlife Service's Clear Lake Ecological
Services Field Office will be contacted at (281) 286-8282.
Documentation: Monitors will be equipped with GPS units so that if they
encounter a toad, they can record its exact location. Monitors will
handle and relocate toads in accordance with their 10(a)(1a) permits.
Should a toad be encountered during work, Jeff Hill or Edith Erfling of
the U.S. Fish and Wildlife Service's Clear Lake Ecological Services
Field Office will be contacted at (281) 286-8282, at extensions x241
and x228 respectively.
****
ATTACHMENT 3
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
February 1, 2012
Mr. Kevin Jaynes
U.S. Department of Homeland Security
FEMA Region 6
800 North Loop 288
Denton, Texas 76209-3698
Dear Mr. Jaynes:
Thank you for your letter dated January 27, 2012, continuing
consultation pursuant to Section 7 of the Endangered Species Act for
FEMA's recovery operations related to the Bastrop County Complex Fire.
Our consultation regarding these activities commenced on January 18,
2012 with FEMA's initial consultation request. Earlier consultation
activities were described in FEMA letters dated November 7, 2011 and
December 13, 2011 and related to other aspects of FEMA's recovery
actions in Bastrop and surrounding counties as part of the major
disaster declaration FEMA-4029-DR-TX. The recovery operations
considered herein occur within Bastrop County, Texas.
Based on the scope of the January 27, 2012 request, the project
includes removal of debris (as defined therein) from public rights-of-
way and qualifying private property, based upon an assessment of risk
to life and property, and the removal of temporary housing units within
the fire-impacted area. Based on your January 27, 2012 letter, FEMA
determined that the recovery operations may affect, but are not likely
to adversely affect the federally endangered Houston toad Bufo
houstonenesis.
As stated above, FEMA has determined that the proposed project may
affect, but is not likely to adversely affect the Houston toad. This
determination is based on the following information:
1. For any removal of temporary housing units from the date of this
consultation and through the end of breeding season, June
1, 2012, FEMA will deploy a Houston toad monitor that is a
qualified biologist and that will be permitted in
identifying, locating, handling, removing, and transporting
the Houston toad. Monitors will work in accordance with the
attached Houston Toad Monitoring Plan. Should a toad be
encountered during removal of a unit, work must cease
immediately, the biological monitor will secure and
relocate the toad and the U.S. Fish and Wildlife Service's
Clear Lake Ecological Services Office will be contacted at
(281) 286-8282.
2. FEMA will deliver an introductory training course on Houston toad
life cycle and habitat requirements for FEMA staff, the
applicants, and key personnel of the debris removal work
crews. Estimated delivery of this training is the week of
January 30, 2012.
3. For work conducted from the date of this consultation and through
the end of breeding season, June 1, 2012, FEMA will deploy
a team of Houston toad monitors that are qualified
biologists and that will collectively be permitted in
identifying, locating, handling, removing, and transporting
the Houston toad. Monitors must work in accordance with the
attached Houston Toad Monitoring Plan. Should a toad be
encountered during debris activities, work must cease
immediately, the biological monitor will secure and
relocate the toad and the U.S. Fish and Wildlife Service's
Clear Lake Ecological Services Office will be contacted at
(281) 286-8282.
4. For Private Property Debris Removal (PPDR), cut trees must be
removed from the site in this order of priority:
Cut trees will be loaded and hauled away at the end of
the work day and no logs will be left behind;
Cut trees will be stacked on hard surfaces (concrete/
caliche driveways or structural foundations);
Cut trees will be kept off natural ground via staging
on horizontal support structures to minimize the creation
of artificial toad habitat. If other logs are used to serve
as horizontal supports, a toad monitor must inspect the
logs that are in contact with the ground for the presence
of toads before those logs can be removed,
5. To minimize the creation of toad habitat in non-desirable
locations such as rights-of-way (ROW), every effort will be
made to remove debris piles within 48 hours of the debris
being deposited.
6. Debris piles will be, to the greatest extent possible, either
hand loaded and/or grapple hook loaded.
7. Any mulch, chips, or other woody debris from tree removal that is
left on site must cover the forest floor in no more than a
1 to 2-inch layer.
8. Soil disturbance, clearing, and operation of heavy equipment (for
example, tractors, large trucks, bulldozers, skidders) will
not occur within a 200-foot distance from potential Houston
toad breeding sites and riparian areas at any time of year.
These may include ephemeral wet weather ponds and other
water features, such as stock tanks, creeks, streams,
drainages, wetlands, seeps, and springs.
9. For trees that pose an immediate safety threat and that occur
within 200 feet of a potential Houston toad breeding site
(ponds, stock tanks, creeks, streams, wetlands, seeps, and
springs that are within or immediately adjacent to a
forested area) or riparian area, tree removal activities
must be conducted in consultation with a qualified Houston
toad monitor and removal activities cannot begin until that
monitor is on site. Trees must be hand cut.
10. Hand cutting can occur within a 200-foot radius of a potential
Houston toad breeding site between July 1 and December 31
(outside of the Houston toad breeding season and emergence
period) without a Houston toad monitor.
11. The number and size of entry and exit points for heavy equipment
to move into and out of forested areas will be kept to the
minimum needed for conducting safe and effective tree and
debris removal operations, while also minimizing soil
disturbance.
12. Streams, riparian zones, wetlands, and areas near potential
Houston toad breeding sites will not be used for staging
equipment or refueling. Equipment must be stored, serviced,
and fueled at least 200 feet away from these sensitive
areas.
13. Gasoline- and diesel-fueled field equipment must be inspected
daily for signs of fuel or hydraulic leaks; such leaks must
be repaired promptly and measures will be taken to prevent
soil contamination. All hazardous materials related to
construction or maintenance activities will be properly
contained, used, and/or disposed of.
14. Clearing for all utility lines and other structures will be
limited to the minimum amount that allows for the safe
completion of a particular project. Hand-clearing of
vegetation will be used when practical. The use of track
equipment for clearing will be minimized.
15. Following debris removal activities, the applicants will ensure
that equipment used on undisturbed ground has not resulted
in potential artificial breeding sites. For example, large
tire ruts will be smoothed so as not to create an
undesirable breeding pond along a ROW.
16. The consultation is limited spatially to Bastrop County and
temporally as described in the FEMA consultation request
dated January 27, 2012.
17. Tree stump grinding will be conducted only if determined by FEMA
to be a safety concern and under no circumstances will
stumps be removed mechanically (i.e., excavated or pushed).
18. All PPDR and ROW debris will be taken to one of the five
previously approved debris sites or will be recycled.
Based on the aforementioned information, the U.S. Fish and Wildlife
Service (Service) concurs that the debris cleanup operations and
temporary housing removal activities as described in the January 27,
2012 consultation letter are not likely to adversely affect the Houston
toad. This concurrence is based upon a review of the Service's files,
our site inspection on January 25, 2012, communications with Dr.
Michael Forstner at Texas State University and others, and is
contingent upon the implementation of the avoidance and minimization
measures. In the event the project changes or additional information on
listed or proposed species becomes available, the project should be
reanalyzed for effects not previously considered.
Our comments are provided in accordance with the provisions of the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). If you have
any questions, or need additional information, please contact Staff
Biologist Mr. Jeff Hill or myself at 281/286-8282.
Sincerely,
Edith Erfling,
Field Supervisor
ATTACHMENT 4
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
_________
Questions Submitted for the Record by Chairman Gohmert to the Honorable
Clara Beckett, Bastrop County Commissioner, Precinct 2
The Honorable Clara Beckett did not submit responses to the Committee
by the appropriate deadline for inclusion in the printed record.
Question 1. Would you describe some of the restrictions you faced
in potential toad habitat? You said you had to have special toad
monitors, but what other modifications were made to your recovery
projects?
Question 2. What were the costs you had to absorb that you hadn't
anticipated as a result of the toad requirements?
Question 3. Was there anything discussed during the hearing that
you felt you were not given ample time to elaborate on or properly
address?
__________
Mr. Gohmert. Thank you. Thank you very much.
At this time we will hear from Ms. Oreskes. Thank you. You
are recognized for 5 minutes.
STATEMENT OF PROFESSOR NAOMI ORESKES, Ph.D., PROFESSOR OF THE
HISTORY OF SCIENCE AND DIRECTOR OF GRADUATE STUDIES, DEPARTMENT
OF THE HISTORY OF SCIENCE, HARVARD UNIVERSITY, CAMBRIDGE,
MASSACHUSETTS
Dr. Oreskes. Thank you. Thank you for the opportunity to be
with you here today and to share my insights gleaned from three
decades as a professional historian studying science in
America.
Witnesses here are trying to cast doubt on environmental
science, arguing that it is politically driven and we should
not be using it to make important decisions. I would like to
challenge the presumption that politically driven science is
bad science, because that presumption is demonstrably false.
History shows that some of the best science in the history
of this country was driven by goals that were explicitly
political. Consider the Manhattan Project. Scientists during
World War II gathered and mobilized to determine the details of
fission reactions, of isotope separation, and many more matters
for the purpose of building an atomic bomb. The political goal
of stopping Adolf Hitler and the sense that the future of this
Nation, and perhaps the entire free world, might rest on their
success was a powerful motivation for scientists to get the
science right.
The Apollo program put men on the Moon and brought them
safely home again, and in doing so expanded our horizons and
our understanding of the universe in which we live. But it was
created in no small part to demonstrate the superiority of
American democracy and democratic capitalism over Soviet
communism.
Plate tectonics is the unifying theory of modern earth
science. It emerged from oceanographic work sponsored by the
U.S. Navy as part of its program in underwater warfare and from
seismological research developed to differentiate earthquakes
from nuclear bomb explosions. These were military and political
goals, part of the cold war commitment to containing communism,
but they led to research that provided fundamental
understanding of planetary processes. And the recent tragedy in
Nepal shows us how important that is.
But what about environmental science? In the 1970s, two
scientists at the University of California, Irvine, Sherwood
Rowland and Mario Molina, realized that a certain class of
chemicals known as chlorinated fluorocarbons, or CFCs, found in
hairspray and other products, had the potential to destroy
ozone on a global scale.
At first their predictions were viewed skeptically, even by
their colleagues. Could hairspray really lead to the end of
life on Earth? That seemed a pretty bold claim. But in 1985,
Joseph Farman of the British Antarctic Survey announced the
discovery of the ozone hole. In 1986, a team led by a NOAA
atmospheric scientist, Susan Solomon, confirmed that finding.
In 1987, Harvard Professor James Anderson put an experiment
on a NASA U-2 spy plane that flew over Antarctica, establishing
through direct measurement that ozone had been massively
depleted and that the depletions correlated in time and space
with chlorine compounds derived from CFCs. If anyone is
interested, I can explain the science to you. It is one of the
most beautiful pieces of science of the 20th century, but we do
not have time right now.
On the basis of this work, President George H.W. Bush's
Secretary of State George Schultz and Assistant Secretary of
State John Negroponte lent their support to the Montreal
Protocol, committing the world to reducing use of CFCs, the
chemicals that these scientists had shown had created the ozone
hole. In 1985, this body, Congress, ratified the protocol, and
in 1995, Molina and Rowland won the Nobel Prize.
Few people realize how much the Montreal Protocol has
protected us and at how little cost. Were it not for the
actions taken under the Protocol, skin cancer rates in America
would be about 60 percent higher than they are today. Livestock
and crops would be affected, too, so our economy was protected
as well.
Now, I would like to underscore two things about this
history. First, this was government science. This science,
which protected us from real harm, was almost all done by
scientists and agencies like NASA and NOAA or funded by those
agencies.
Second, it was attacked at the time as corrupt and
politically motivated. In 1995, Representative Dana Rohrabacher
organized a hearing distressingly similar to the one in which
we are participating today. Ostensibly focused on scientific
integrity, its real purpose was to discredit not just ozone
science but environmental science in general.
Ozone science is now history, but climate science is very
much alive. Like ozone science, climate science is being
attacked, and not only in the same way but by the same people.
Indeed, many of those attacking science today previously
attacked the science that demonstrated the harms of tobacco
use. Today, we know that millions of people have died from
preventable, tobacco-related diseases. Do we really have to
wait for people to die before we accept the evidence of climate
change?
Thank you.
[The prepared statement of Dr. Oreskes follows:]
Prepared Statement of Naomi Oreskes, Professor of the History of
Science, Affiliated Professor of Earth and Planetary Sciences, Harvard
University
Thank you for the opportunity to be here with you today.\1\
---------------------------------------------------------------------------
\1\ Unless otherwise noted, the materials presented here are drawn
from Naomi Oreskes and Erik M. Conway, Merchants of Doubt: How a
Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke
to Global Warming (Bloomsbury, 2010). On the details of NASA research
on ozone, see also Erik M. Conway, Atmospheric Science at NASA: A
History (The Johns Hopkins University Press, 2008).
---------------------------------------------------------------------------
Our topic here today is politically driven science. I speak here as
a historian who has spent the bulk of my professional life studying
science, and I am interested in particular in the conditions that
foster good science, and the conditions that undermine it. I have done
research on the history of geology, geophysics and oceanography,
focusing on American science in the 20th and 21st century. I have also
studied environmental science, including studies of pesticides,
endocrine-disrupting chemicals, acid rain, the ozone hole, and man-made
climate change.
Witnesses here today are trying to cast doubt on environmental
science, arguing that is politically driven, and we should not be using
it to make important decisions.
As a guest of the democratic minority, I might be expected to
attempt to refute the premise and argue that the science under
consideration is not politically driven.
What I want to do is slightly different. I want to challenge the
presumption that politically driven science is bad science. That
presumption--while widely held--is demonstrably false.
A great deal of science is politically driven
History shows that a much--maybe most--science is driven by
political, economic, or social goals. Some of the best and most famous
science in the history of our country was driven by goals that were
explicitly political.
Consider the Manhattan Project. Scientists during World War II
gathered and mobilized to determine the details of fission reactions,
of isotope separation, of high-temperature and high-pressure metallurgy
and many more matters, for the purpose of building an atomic bomb. The
political goal of stopping Adolf Hitler--and the sense that the future
of the United States, and perhaps the entire free world, might depend
on their success--provided a powerful motivation for scientists to get
the science right.
Another example is the space program. The United States first
developed rocketry to be able to deliver ballistic missiles, carrying
nuclear warheads, to the Soviet Union. The political goal of containing
Communism was a power motivation for scientists. In later years, the
goal of maintaining peace through the doctrine of Mutual Assured
Destruction further motivated our scientists to ensure that our weapons
worked, and would go where they were sent.\2\
---------------------------------------------------------------------------
\2\ Hugh Gusterson, Nuclear Rites: A Weapons Laboratory at the End
of the Cold War (University of California Press, 1998).
---------------------------------------------------------------------------
In the Apollo program, NASA scientists knew that getting the
science right would make the difference between astronauts getting to
the Moon or not, and more important, getting home. Knowing that the
lives may depend on your calculations is a powerful form of
accountability.
Some might argue that these were not scientific projects but
technological ones, but this is not a meaningful distinction. These
various projects led to the construction of new and significant
technologies, but they all also required--indeed were founded upon--
newly developed science. Moreover, we can find examples that are not
technological at all, yet still show us how politics can drive good
science.
Plate tectonics is the unifying theory of modern earth science, and
it too was a product of political goals. The key work that led to this
theory came from oceanography and seismology. The oceanography was done
as part of the U.S. Navy's programs in underwater warfare to use
science to detect Soviet submarines, and to safely hide our own. The
seismology emerged largely from efforts to differentiate earthquakes
from nuclear bomb tests.
These were military and political goals--part of the cold war
commitment to contain Communism--but they led to research that provided
the fundamental understanding of planetary processes; understanding
that, not incidentally, forms the basis for oil and gas exploration,
for mining and mineral exploration, and for predicting and protecting
against seismic hazard.
Nearly all of this work was done by government scientists. It was
done either by scientists working directly for the U.S. Government, for
example at the U.S. Naval Research Laboratory or U.S. Geological
Survey, or by scientists in universities and research institutions like
the University of California, Columbia University, and the Woods Hole
Oceanographic Institution, with funds that were supplied almost
entirely by the U.S. Government.
The Manhattan project was government science.
The Apollo program was government science.
Plate tectonics was government science.
Virtually every major development in the physical sciences in
America in the second half of the 20th century was government science--
either done by scientists in government agencies and national
laboratories, or by academics primarily funded by the Federal
Government. The academic scientists, if they were at public
universities, like the University of California, had their salaries
paid by their states, so in some sense they were government scientists,
too.
Is environmental science any different?
The history of ozone science
Consider the men and women who laid the scientific foundations for
the Montreal Protocol to the Vienna Convention for the Protection of
the Ozone Layer.\3\ The Vienna Convention, established in 1985,
protects us from the potentially devastating effects of ozone
depletion. Today, the ozone hole is recovering, and scientists expect
it to recover fully in the coming decades.\4\ This recovery would not
have happened without the work of environmental scientists.
---------------------------------------------------------------------------
\3\ http://ozone.unep.org/new_site/en/vienna_convention.php.
\4\ http://montreal-protocol.org/Assessment_Panels/SAP/
SAP2014_Assessment_for_Decision-Makers.pdf.
---------------------------------------------------------------------------
Scientists first recognized threats to stratospheric ozone in the
early 1970s. Scientists working at NASA and the University of
California realized that chemicals released into the atmosphere from
supersonic transport and the space shuttle could react with ozone in
the stratosphere, and destroy it. Because of this threat, NASA began to
fund studies of the chemical reactions involved. Meanwhile, two
scientists at the University of California, Irvine, Sherwood Rowland
and Mario Molina, realized that a certain class of chemicals known as
Chlorinated Fluorocarbons--or CFCs--found in hairspray and other
products, had the potential to destroy ozone on a global scale. At
first, their predictions were viewed skeptically, even by their
colleagues: could hairspray really lead to the end of life on Earth?
That seemed a pretty bold--if not outrageous--claim.
But in 1985, Joseph Farmer of the British Antarctic Survey
announced the discovery of an ``ozone hole'' over Antarctica, Farmer
had made a set of ground-based observations, using ultra-violet
absorption measurements, that demonstrated that ozone was dramatically
depleted in the Antarctic region. The following year a team led by NOAA
atmospheric scientist, Susan Solomon, undertook further ground-based
observations to confirm significant ozone depletion, and suggested that
ozone was being depleted by chlorine chemicals--derived from CFCs--in
catalytic reactions on polar stratospheric clouds.
In 1987, Harvard Professor James Anderson sent an experiment in a
NASA U-2 plane over the Antarctic, establishing through direct
measurement that ozone had been massively depleted, and that the
depletions correlated in time and space with chlorine compounds derived
from CFCs, thus confirming the earlier hypotheses (Figure 1). Later his
team obtained similar measurements over the Arctic demonstrating the
same catalytic chemistry in the northern hemisphere. All this research
was NASA funded.
On the basis of this work, President Bush, Secretary of State
George Schultz, and Assistant Secretary of State John Negroponte leant
their support to the Montreal Protocol to the Vienna Convention,
committing the world to reducing the use of CFCs--the chemicals that
these scientists had shown had created the ozone hole. In 1988, with
the President's support, Congress ratified the Montreal Protocol.\4\
Susan Solomon has been elected to the U.S. National Academy of
Sciences, the European Academy of Sciences, and the French Academy of
Sciences. In 2008, she was named by Time magazine as one of the 100
most influential people in the world.
Jim Anderson has won more prizes than you can count, including
Harvard University's Ledlie Prize for Most Valuable Contribution to
Science by a Member of the Faculty (and I teach at Harvard so I can
tell you that the competition at Harvard is stiff.)
In 1995, Rowland and Molina shared the Nobel Prize in chemistry for
this work.
If ozone science had been distorted, corrupted or was otherwise
incorrect, Rowland and his colleagues would not have received the
world's highest scientific honors. More important, if the science had
been wrong, the ozone hole would not today be recovering. But it was
right, and we were, and are, protected.
President Bush was not duped; President Bush did the right thing.
He protected us from harm.
Few people realize how much the Montreal Protocol has protected
us--and at how little it cost. Were it not for the Montreal Protocol,
skin cancer rates in America would be about 60 percent higher than they
are today. Livestock and crops would be affected too. And few people
realize how little this protection cost, as DuPont, the major
manufacturer of CFCs, realized that it could replace those chemicals
with new, less harmful products.
I'd like to underscore two things about this history.
First, this was government science. These men and women worked
either at government agencies like NASA and NOAA, publicly funded
universities like the University of California, Irvine, or received
their funding through government agencies: NOAA, NASA, and the NSF. And
many of these scientists spoke out publicly to explain to the American
people--and to Congress--what their work meant, and why it showed that
we needed to act.
Second, this science was attacked at the time as corrupt and
politically motivated. It was attacked in the Halls of Congress, in
much the same way as science is being attacked here today. In 1995,
Representative Dana Rohrabacher organized a hearing distressingly
similar to the one we are participating in today. Ostensibly it focused
on ``scientific integrity;'' its real purpose was to challenge ozone
science.
Industry representatives claimed the science was incorrect and that
fixing the problem would be devastating to our economy. They claimed
that scientists were exaggerating the threat to get more money for
their research. Entered into the Congressional Record was the claim
that there was ``no scientific consensus on ozone depletion,'' a claim
that was shown to be completely false by the award of the Nobel prize
just a few weeks later. And, when the DuPont Corporation phased out
production of CFCs, our economy did not collapse.
Yet, similar claims are being made today, particularly with respect
to climate science.
These claims are as misguided today as they were 20 years ago.
Who is behind these attacks?
Many of the same people who attacked ozone science. Climate science
is being attacked by many of the same individuals and organizations who
attacked ozone science, and using many of the same arguments.
Climate science
Let's look a bit at the history of climate science.
Scientists have known for more than 100 years that greenhouse
gases, such as carbon dioxide and methane, are greenhouse gases that
trap heat in a planet's atmosphere. If you increase their concentration
in a planet's atmosphere, the planet will get hotter. Venus is
incredibly hot--(864 degrees Fahrenheit) not because it is closer to
the sun, but because it has an atmosphere hundreds of times denser than
Earth's, and composed mainly of CO2.
In the United States, the first scientist to focus attention on the
risk of increased CO2 from burning fossil fuels was
oceanographer Roger Revelle. During World War II, Revelle served an
officer in the U.S. Navy Hydrographic Office, and he continued to work
closely with the Navy throughout his career, including with the
Hydrographic Office, the Office of Naval Research, and the Bureau of
Ships. In the 1950s, he argued for the importance of scientific
research on man-made climate change, calling particular attention to
the threat that sea level rise from melting glaciers and thermal
expansion of the oceans posed to the safety and security of major
cities, ports, and naval facilities.
In the 1960s, he was joined in his concern by several colleagues,
including Dave Keeling, the man who first began to measure atmospheric
carbon dioxide in 1958, and by Gordon MacDonald, a geophysicist who
served on the first Council on Environmental Quality, under President
Richard Nixon.
In the 1974, the emerging scientific understanding was summarized
by Alvin Weinberg, the head of the Oak Ridge National Laboratory, who
explained that our use of fossil fuels was likely to be limited by the
threat they represented to the Earth's stable and beneficent climate.
He wrote: ``Although it is difficult to estimate how soon we shall have
to adjust the world's energy policies to take this limit into account,
it might well be as little as 30-50 years.'' \5\
---------------------------------------------------------------------------
\5\ Alvin Weinberg, 1974. Global Effects of Man's Production of
Energy, Science 186: 205. http://www.sciencemag.org/content/186/4160/
205.citation.
In 1977, Robert M. White, the first administrator of NOAA and later
President of the National Academy of Engineering, summarized the
---------------------------------------------------------------------------
scientific findings this way:
We now understand that industrial wastes, such as carbon
dioxide released during the burning of fossil fuels, can have
consequences for climate that pose a considerable threat to
future society. . . . [E]xperiences of the past decade have
demonstrated the consequences of even modest fluctuations in
climatic conditions [and] lent a new urgency to the study of
climate. . . . The scientific problems are formidable, the
technological problems, unprecedented, and the potential
economic and social impacts, ominous.'' \6\
---------------------------------------------------------------------------
\6\ Robert M. White, 1978, Oceans and Climate: An Introduction,
Oceanus, 21: 2-3.
In 1979, the U.S. National Academy of Sciences concluded: ``If
carbon dioxide continues to increase, [we] find no reason to doubt that
climate changes will result, and no reason to believe that these
changes will be negligible.'' \7\
---------------------------------------------------------------------------
\7\ Jule Charney et al., Carbon Dioxide and Climate: A Scientific
Assessment, Report of an Ad-Hoc Study Group on Carbon Dioxide and
Climate, Woods Hole, Massachusetts, July 23-27, 1979, to the Climate
Research Board, National Research Council (Washington, DC: National
Academies Press, 1979), on p. 2.
---------------------------------------------------------------------------
These findings led the World Meteorological Organization to join
forces with the United Nations to create the Intergovernmental Panel on
Climate Change, to establish a stable scientific foundation for
informed public policies. Just as good science laid the foundation for
the Vienna Convention, good science would now lay the foundation for
the United Nations Framework Convention on Climate change, signed in
1992 by President George H.W. Bush.
Since then, the scientific world has affirmed and re-affirmed the
scientific evidence over and over again. It has been affirmed in the
United States by our own National Academy of Sciences, the American
Meteorological Society, the American Geophysical Union, the American
Association for the Advancement of Sciences, and many more, as well as
by leading scientific societies and academies abroad.
In 2006, 11 national academies of science around the globe,
including the oldest in the world--the Accademia nazionale dei Lincei
of Italy-- issued an unusual joint statement, noting that the ``threat
of climate change is clear and increasing,'' and that ``delayed action
will . . . incur a greater cost.'' That was nearly a decade ago. Today
scientists tell us that human-made climate change is now
``unequivocal'' and the costs are already being felt.
This work was done by scientists around the globe--men and women,
old and young, Democrats and Republicans. In fact, probably more of
them were Republicans than Democrats: Gordon MacDonald was a close
advisor to President Nixon; Dave Keeling was awarded the National Medal
of Science by President George W. Bush in 2002.
Yet, despite the long history of this work and the bipartisan
character of the scientists who did it, climate science continues not
merely to be questioned, but to be attacked. Just yesterday, the
world's most revered climate scientists met with Pope Francis to advise
him on the facts of climate change, and the threat that it represents
to the future health, wealth, and well-being of men, women and
children--not to mention the other species with whom we share this
unique planet we call our Earth. Yet at the same time, climate change
deniers met across the road from the Vatican, to attempt to prevent the
Pope from speaking out on the moral meaning of climate change. Whenever
we see signs that the political landscape is shifting, and that the
world might be ready to act to prevent dangerous climate change, the
forces of denial redouble their efforts to stop us.
Time does not permit me to recount the long history of climate
change denial, so let me just say this. The organization responsible
for the denialist meeting in Rome is the Heartland Institute, a group
with a long history not only of rejecting climate science, but also of
rejecting science generally. They were responsible for the infamous
billboards comparing climate scientists to the Unabomber. They have a
documented history of working with the tobacco industry to question the
scientific evidence of the harms of tobacco. Indeed, many of the groups
who today question the reality or significance of human-made climate
previously questioned the scientific evidence of the harms of
tobacco.\8\
---------------------------------------------------------------------------
\8\ In 1997, Philip Morris paid $50,000 to the Heartland Institute,
it gave $200,000 for the Advancement of Sound Science Coalition,
$125,000 for the Competitive Enterprise Institute, $100,000 to the
American Enterprise Institute, and many more. All of these groups have
questioned the scientific evidence of man-made climate change. Often
financial contributions were referred to in company documents as
``philanthropy,'' and because these organizations all claim to be
nonprofit and nonpartisan. But it is hard to see how defending tobacco
use exactly qualifies as ``philanthropy.'' Indeed, one wonders if this
is not in fact a violation of the tax code. See Oreskes and Conway,
Merchants of Doubt, p. 234.
---------------------------------------------------------------------------
Today, we know that millions of people have died from tobacco-
related diseases. Do we really have to wait for people to die before we
accept the evidence of damaging climate change?
Does politics distort science?
Let me return to our question of politically driven science.
Ozone science was not attacked because it was wrong scientifically;
it was attacked because it was politically and economically
consequential. The realities of ozone depletion had political and
economic consequences that some people did not like, consequences that
threatened their interests. It is the same with climate science. The
reality is that climate science has told us that business as usual
threatens our health, our wealth, and our well-being. Hence it is
hardly surprising that some sectors of the business community have
tried to undermine that message, supporting attacks on science and
scientists, and funding distracting research and misleading conferences
to create the impression of scientific debate, confuse the American
people, and delay action.
This brings me to my most important point. Science can be biased,
particularly when the financial support for that science comes from
parties who have a vested interest in a particular outcome. But history
suggests that such vested interests have, at least in our country, come
more from the private sector than from the public sector.
The clearly documented example of this is tobacco.
For decades tobacco companies supported scientific research, both
in their own laboratories and in universities, medical schools, and
even cancer research institutes. But we know, from their own internal
records, that the purpose of this research was not to determine the
truth about tobacco, but to create the impression of scientific debate,
to create doubt about whether or not tobacco was really harmful, and
therefore protect the industry against lawsuits and regulation.
The research that industry funded was less likely to find that
tobacco use was damaging than research that was not funded by the
industry. Nearly all of that research has today been discredited.
Not only was much of the industry-funded research biased, but the
industry knew it was. Industry executives knew in the 1950s that
tobacco caused cancer, they knew by the 1960s that it caused a host of
other diseases as well, they knew by the 1970s that it was addictive,
and they knew by the 1980s that secondhand smoke caused cancer in non-
smokers, and sudden infant death syndrome in babies.
What lessons can we learn from this experience? One important
lesson is the disclosure of funding sources. In preparing my testimony
for today I was asked to disclose all sources of government funding of
my research. This is a reasonable request. But there was no comparable
request for disclosure of private funding. This is an unreasonable
omission.
Because the potential for distortion is real, it is important that
funding sources be disclosed. But this means all funding sources--both
private and public, for profit and not. To ask for disclosure of public
funds and not ask the same of private sources would be like asking for
automotive inspections of half your engine, or safety inspections of
half an airplane.
Concluding remarks
Many people resist accepting the scientific evidence of climate
change because they fear it will be used as an excuse to expand big
government. The logic of this is wrong on two counts.
The first should be obvious: denying a problem does not make it go
away. On the contrary, delay makes the problem harder to cure. Delay in
acting on tobacco control led to millions of preventable deaths. Delay
in acting on climate change will increase the costs we pay to deal with
the impacts, at minimum in dollars and very likely in lives.
The second is perhaps a bit less obvious. By delaying action on
global carbon emission for more than two decades, we have increased the
likelihood that disruptive global warming will lead to the very
government interventions that many of you seek to avoid. Climate change
is already causing an increase in extreme weather events--events that
almost always need governmental response.
As climate change unfolds here in the United States, natural
disasters--especially those that disrupt food and water supply--will
cause us to have to rely more on government--especially the Federal
Government--to deal with them. As climate change unfolds around the
globe, natural disasters will give undemocratic forces the
justification they seek to commandeer resources, declare martial law,
interfere with the market economy and, suspend democratic process. But
note one thing: our grandchildren will not call them ``natural''
disasters, because they will know that we caused them.
All of us who care about political freedom--and I believe that is
all Americans--should do everything we can to support our climate
scientists, and to act to prevent the threats they have so clearly
documented. To do otherwise can only increase the chances that
authoritarian forms of governance will come out ahead in the end.
FIGURE 1
Ozone Loss in Southern Hemisphere from Satellite
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Supplementary Material Submitted for the Record and Retained in
Committee's Official Files
--Essay beyond the Ivory Tower: ``The Scientific Consensus on
Climate Change,'' Naomi Oreskes. 3 December 2004, Vol 306,
Science, p. 1686.
--``The Long Consensus on Climate Change,'' Naomi Oreskes, February
1, 2007, WashingtonPost.com.
--Excerpt from Chapter 4 of Oreskes, Naomi and Erik M. Conway,
2010. Merchants of Doubt: How a Handful of Scientists
Obscured the Truth on Issues from Tobacco Smoke to Global
Warming. (New York: Bloomsbury Press); reproduced with
permission.
______
Questions Submitted for the Record by Congressman Raul Grijalva to
Naomi Oreskes, Professor of the History of Science, Harvard University
Question 1. Questioning of Kathleen Hartnett White at the hearing
went, in part, as follows:
Mr. Grijalva. You have written that climate change is real but not
caused by humans. Is that a correct summary of your position?
Mrs. Hartnett White. That is not how I would express my opinion
about the issue. I tried to say at the conclusion of my earlier oral
testimony that I think that as the impacts of certain policy decisions
or regulatory decisions that Congress makes, as the magnitude of those
get greater or bigger, I think the elimination of fossil fuels as
rapidly as possible would have enormous impacts across the world. But
the science that supports the need to do that has to be extremely
robust. I think that the current state of climate science is not strong
enough, nor are the key models validated, in order to support policy of
that magnitude.
Do you agree that ``the current state of climate science is not
strong enough nor are the key models validated in order to support''
the phase out of fossil fuels? Why or why not?
Answer. Absolutely not. Any person who would make such a claim is
either ignorant of the state of climate science or fails to understand
its implications. The scientific evidence and consensus on the reality
of anthropogenic climate change is robust, extensive, and of long
standing. Its implications in terms of the grave risks posed by
continued, unrestricted fossil fuel combustion have been documented at
great length.\1\
---------------------------------------------------------------------------
\1\ Intergovernmental Panel on Climate Change, five reports since
its founding in 1988, all available on line at http://www.ipcc.ch.
---------------------------------------------------------------------------
Scientists have known for more than 100 years that greenhouse
gases, such as carbon dioxide and methane, are greenhouse gases that
trap heat in a planet's atmosphere. If you increase their concentration
in a planet's atmosphere, the planet will get hotter. Venus is
incredibly hot (864 degrees Fahrenheit) not because it is closer to the
sun, but because it has an atmosphere composed mainly of carbon dioxide
(CO2).
In the United States, the first scientist to focus attention on the
risk of increased CO2 from burning fossil fuels was
oceanographer Roger Revelle. During World War II, Revelle served an
officer in the U.S. Navy Hydrographic Office; he continued to work
closely with the Navy throughout his career, including with the
Hydrographic Office, the Office of Naval Research, and the Bureau of
Ships. In the 1950s, he argued for the importance of scientific
research on man-made climate change, calling particular attention to
the threat that sea level rise from melting glaciers and thermal
expansion of the oceans posed to the safety and security of major
cities, ports, and naval facilities. In the 1960s, he was joined in
this concern by several colleagues, including Dave Keeling, the man who
first began to measure atmospheric CO2 in 1958, and by
Gordon MacDonald, a geophysicist who served on the first Council on
Environmental Quality, under President Richard Nixon.
In the 1974, the emerging scientific understanding was summarized
by Alvin Weinberg, the head of the Oak Ridge National Laboratory.
Weinberg explained that fossil fuel use was likely to be limited not by
the total amount of fuel in the world, but by the threat their use
represented to the Earth's stable and beneficent climate: ``Although it
is difficult to estimate how soon we shall have to adjust the world's
energy policies to take this limit into account, it might well be as
little as 30-50 years.'' \2\
---------------------------------------------------------------------------
\2\ Alvin M. Weinberg, ``Global Effects of Man's Production of
Energy,'' Science 186, no. 4160 (October 18, 1974): 205.
In 1977, Robert M. White, the first administrator of the National
Oceanic and Atmospheric Administration (NOAA) and later President of
the U.S. National Academy of Engineering, summarized the scientific
---------------------------------------------------------------------------
findings this way:
We now understand that industrial wastes, such as carbon
dioxide released during the burning of fossil fuels, can have
consequences for climate that pose a considerable threat to
future society. . . . [E]xperiences of the past decade have
demonstrated the consequences of even modest fluctuations in
climatic conditions, [and] lent a new urgency to the study of
climate. . . . The scientific problems are formidable, the
technological problems, unprecedented, and the potential
economic and social impacts, ominous.'' \3\
---------------------------------------------------------------------------
\3\ Robert M. White, ``Oceans and Climate--Introduction,'' Oceanus
21 (1978): 2-3.
In 1979, the U.S. National Academy of Sciences concluded: ``If
carbon dioxide continues to increase, [we] find no reason to doubt that
climate changes will result, and no reason to believe that these
changes will be negligible.'' \4\
---------------------------------------------------------------------------
\4\ Jule Charney et al., Carbon Dioxide and Climate: A Scientific
Assessment, Report of an Ad-Hoc Study Group on Carbon Dioxide and
Climate, Woods Hole, Massachusetts, July 23-27, 1979, to the Climate
Research Board, National Research Council (Washington, DC: National
Academies Press, 1979).
---------------------------------------------------------------------------
These findings led the World Meteorological Organization to join
forces with the United Nations to create the Intergovernmental Panel on
Climate Change to establish a stable scientific foundation for informed
and prudent public policies. Following the model established by the
Montreal Protocol on Substances that deplete the ozone layer--a science
based Protocol supported by diverse constituencies, including the
private sector and President George H.W. Bush--the United Nations
Framework Convention on Climate Change would use substantiated science
to inform prudent policy. It was signed by President Bush in 1992.
However, time political resistance--led by libertarian think tanks and
the fossil fuel sector--was already emerging, and Congress never
ratified the Convention.
Meanwhile the science was becoming clearer, and by 1995 a consensus
had emerged that man-made climate change--long predicted by
scientists--was now underway. In the Second Assessment Report of the
Intergovernmental Panel on Climate Change, scientists affirmed that:
``The balance of evidence suggests a discernible human impact on global
climate'' (IPCC, 1995). However, this conclusion was attacked by
climate change deniers, who were by this time fully engaged in a
strategy of sowing doubt about the science. They did this in a pattern
developed and used to great effect by the tobacco industry in delaying
government action to control tobacco and decrease its adverse effects
on American public health. In fact, some of the groups and individuals
now challenging climate science were active in these prior campaigns to
defend tobacco by challenging the scientific evidence of its harms.\5\
---------------------------------------------------------------------------
\5\ Gelbspan, Ross, 1998. The Heat is On, The Climate Crisis, The
Cover-Up, The Prescription, (New York: Basic Books), and idem, 2004,
Boiling Point: How Politicians, Big Oil and Coal, Journalists, and
Activists Have Fueled the Climate Crisis--and What We Can Do to Avert
Disaster (New York: Basic Books).
---------------------------------------------------------------------------
Since 1995, the scientific world has affirmed and re-affirmed the
scientific evidence over and over again. It has been affirmed in the
United States by our own National Academy of Sciences, the American
Meteorological Society, the American Geophysical Union, the American
Association for the Advancement of Sciences, and many more, as well as
by leading scientific societies and Academies abroad.
In 2004 I wrote the first peer-reviewed article that reviewed the
state of climate science and asked the question: Does the peer reviewed
literature comport with the statements of these leading scientific
bodies? (Oreskes, 2004), The answer was yes. This result has been
replicated by other, independent scientists, most recently by John Cook
and colleagues.\6\
---------------------------------------------------------------------------
\6\ John Cook et al., 2013. ``Quantifying the consensus on
anthropogenic global warming in the scientific literature,''
Environmental Research Letters 8(2): 024024 doi:10.1088/1748-9326/8/2/
024024.
---------------------------------------------------------------------------
In 2006, 11 national academies of science around the globe,
including the oldest in the world--the Accademia nazionale dei Lincei
of Italy-- issued an unusual joint statement, noting that the ``threat
of climate change is clear and increasing,'' and that ``delayed action
will . . . incur a greater cost.'' That was nearly a decade ago. Today
scientists tell us that human-made climate change is now
``unequivocal'' and the costs are already being felt.\7\
---------------------------------------------------------------------------
\7\ Intergovernmental Panel on Climate Change, Fifth Assessment
Report, 2013, https://www.ipcc.ch/report/ar5/wg1/; see also https://
www.ipcc.ch/news_and_events/docs/ar5/press_release_ar5_wgi_en.pdf.
---------------------------------------------------------------------------
This science, done over the course of more than a century, was done
by scientists around the globe--men and women, old and young, Democrats
and Republicans. Probably more of them were Republicans than Democrats:
Gordon MacDonald was a close advisor to President Nixon; Charles David
Keeling was awarded the National Medal of Science by President George
W. Bush in 2002. What all these men and women had in common was that
all would have agreed that the scientific basis for any public policy
decision should be robust. Scientists today would say the same, and
their work over many decades has been a sustained effort to ensure just
that.
Despite the long history of this work and the bipartisan character
of the scientists who did it, climate science continues not merely to
be questioned, but to be attacked. In the very week that our hearing
took place, the world's most revered climate scientists met with Pope
Francis to advise him on the facts of climate change, and the threat
that it represents to the future health, wealth, and well-being of men,
women and children--not to mention the other species with whom we share
this unique planet we call our Earth.\8\ Yet at the same time, climate
change deniers met across the road from the Vatican, to attempt to
prevent the Pope from speaking out on the moral meaning of climate
change.\9\ Whenever there are signs that the political landscape is
shifting, and that the world might be ready to act to prevent dangerous
climate change, the forces of denial redouble their efforts to stop us.
---------------------------------------------------------------------------
\8\ http://www.casinapioiv.va/content/accademia/en/publications/
extraseries/sustainable.html; See also http://www.casinapioiv.va/
content/accademia/en/events/2014/sustainable/statement.html.
\9\ http://www.theguardian.com/environment/2015/apr/24/heartland-
institute-koch-pope-francis-lobbying-climate-change-global-warming.
---------------------------------------------------------------------------
The history of climate change denial is recounted in my book, co-
authored with Erik M. Conway, Merchants of Doubt.\10\ The organization
responsible for the denialist meeting in Rome is the Heartland
Institute, a group with a long history not only of rejecting climate
science, but of rejecting science generally. They were responsible for
the infamous billboards comparing climate scientists to the Unabomber.
They are an institute with a documented history of working with the
tobacco industry to question the scientific evidence of the harms of
tobacco. They are not the only ones with a history in tobacco. Many of
the groups who today question the reality or significance of human-made
climate previously questioned the scientific evidence of the harms of
tobacco.\11\ The strategy that Ms. White uses--to raise questions about
the science, and suggest that it is insufficiently robust on which to
base public policy--is precisely the one that was used for decades by
the tobacco industry and its allies.
---------------------------------------------------------------------------
\10\ Oreskes, Naomi and Erik M. Conway, 2010. Merchants of Doubt:
How a Handful of Scientists Obscured the Truth on Issues from Tobacco
Smoke to Global Warming (New York: Bloomsbury Press).
\11\ In 1997, Philip Morris paid $50,000 to the Heartland
Institute, $200,000 to the Advancement of Sound Science Coalition,
$125,000 to the Competitive Enterprise Institute, $100,000 to the
American Enterprise Institute, and many more. All of these groups have
questioned the scientific evidence of man-made climate change. Often
financial contributions were referred to in company documents as
``philanthropy,'' and because these organizations all claim to be
nonprofit and nonpartisan. But it is hard to see how defending tobacco
use exactly qualifies as ``philanthropy''. See Oreskes and Conway,
Merchants of Doubt, p. 234.
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All sensible people agree that major public policy decisions should
be rooted in good information. When the issues depend in part on
scientific information--which action on climate change inescapably
does--then that information must necessarily be in part scientific. It
is essential for public safety and well-being that decisionmakers be
well-informed about and understand that science. It is not in the
interest of the American people to be misled, either by ignorance or
intent.
Despite the allegations and innuendo of individuals like Ms. White
and her colleagues, scientific world is not at war with fossil fuels.
Scientific investigations are a sustained attempt to understand the
ways in which the natural world--the world on which we depend on both
for our prosperity and our survival--works. As Rachel Carson argued so
eloquently many years ago, we break the laws of nature at our peril.
And a war against nature is a war we cannot win. This is a lesson that
both Republicans and Democrats heeded in the past, but which many seem
of late to have forgotten.
As for model validation (sic), much of the scientific work of the
past three decades has been dedicated to model development and testing.
In the early 1990s, I wrote what is now considered a benchmark paper on
the question of how models are evaluated.\12\ In this work, my
colleagues and I explored the ways and means scientists test their
models. Since that time, the scientific community has put extraordinary
effort into evaluating and testing climate models. The important point
to underscore here is that models are tools, not facts. Scientists use
them to answer questions about the behavior of the natural world. We
have learned a great deal about Earth's climate system through
modeling: among the things we have learned is that the observed warming
trend of the past 50 years cannot be accounted for by natural
variability, but can only be explained by dominant contribution of
greenhouse gas-driven warming.
---------------------------------------------------------------------------
\12\ Oreskes, Naomi, Kristin Shrader-Frechette and Kenneth Belitz,
1994. ``Verification, validation, and confirmation of numerical models
in the earth sciences,'' Science 263: 641-646; Oreskes, Naomi, 1998.
``Evaluation (not validation) of quantitative models,'' Environmental
Health Perspectives 106 (supp. 6): 1453-1460; Oreskes, Naomi, 2007,
``The scientific consensus on climate change: How do we know we're not
wrong? '' Climate Change: What It Means for Us, Our Children, and Our
Grandchildren, edited by Joseph F.C. DiMento and Pamela Doughman, MIT
Press, pp. 65-99.
Question 2. You mentioned in your testimony that you were asked to
disclose your Federal and foreign funding sources but there were no
questions about private funding. From the perspective of a historian of
science and an expert on the politicization of science, what are the
implications of that for public policy generally, and for the climate
---------------------------------------------------------------------------
denier movement, specifically?
Answer. From any perspective, disclosure of funding sources--
whether public or private--is essential to the preservation of
scientific integrity. A robust scientific literature, dating to the
mid-eighties, has found that research outcomes can be statistically
correlated with funding sources, in what is called the ``funding
effect.'' \13\ This does not mean that the researchers have been
``corrupted''--although in some cases they may be--since the funding
effect may be the result of unconscious bias. Researchers make many
choices in the design, implementation and interpretation of their work
that involve expert judgment. This opens a pathway through which
unconscious bias may exert itself, both in study design and in data
interpretation. In theory, such bias should be noticed in peer review;
in practice, these subtleties often escape notice until results are
contested by whistleblowers, challenged by other scientists, re-
examined in litigation, or detected in later meta-studies.
---------------------------------------------------------------------------
\13\ Good points of entry into this literature are Lundh A,
Sismondo S, Lexchin J, Busuioc OA, Bero L. Industry sponsorship and
research outcome. Cochrane Data base of Systematic Reviews
2012;12:MR000033. dx.doi.org/10.1002/14651858.MR000033.pub2, and
Sheldon Krimsky, ``Do Financial Conflicts of Interest Bias Research? An
Inquiry into the ``Funding Effect'' Hypothesis,'' Science, Technology,
and Human Values, September 20, 2012, doi: 10.1177/0162243912456271,
http://sth.sagepub.com/content/38/4/566.abstract.
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Editors, reviewers, readers, and the public make the default
assumption that the research before them is unbiased; disclosure is
essential because it alerts them to the fact that honest researchers
may nevertheless be subject to unconscious bias.
Scientists themselves may not be fully aware of how subconscious
bias may affect their results. Many researchers have a narrow
conception of research integrity, restricting it in their own minds to
avoiding egregious misconduct such as fraud, fabrication, and
plagiarism. But many other behaviors can compromise research integrity,
and evidence suggests that these behaviors may be widespread. One
large, well-designed study, published in Nature in 2005, found that 33
percent of researchers surveyed admitted to questionable behaviors
within the previous 3 years, including 20 percent of mid-career
researchers who acknowledged ``changing the design, methodology or
results of a study in response to pressure from a funding source.''
\14\
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\14\ http://www.nature.com/nature/journal/v435/n7043/full/
435737a.html.
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A survey of researchers conducted by the Nuffield Council on
Bioethics found that 58 percent of respondents aware of scientists
feeling tempted to compromise on research integrity and standards, yet
only 26 percent of these same respondents felt personally tempted to
engage in the same behavior. A similar study of medical residents found
that 61 percent argued that gifts from pharmaceutical companies would
not affect their behavior, while only 16 percent of their colleagues
could remain similarly unaffected by such gifts. This is a clear
example of what social scientists call the ``third person effect'':
that we all think that other people are more prone to bias and error
than we are ourselves.\15\
---------------------------------------------------------------------------
\15\ On third-person effect in climate science, see Lewandowsky,
Stephan, Naomi Oreskes, James S. Risbey, Ben R. Nerwell and Michael
Smithson, 2015 ``Climate Change Denial and its Effect on the Scientific
Community,'' Global Environmental Change 33: 1-13. http://
www.sciencedirect.com/science/article/pii/S0959378015000515.
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This problem is of especial concern in relation to climate science,
because prominent climate change deniers have received substantial
funding from private sector sources.\16\ Indeed, in some cases, they
may have only private sector sources, because the quality of their work
is too poor to be able to compete for competitive scientific funding,
such as that provided by the National Science Foundation, the National
Institutes of Health, NASA, NOAA, or the any of the various executive
branch departments, such as Energy and Defense, that fund basic and
applied scientific research. The notable recent example of this is Dr.
Wei-Hook (``Willie'') Soon, whose contrarian climate research of recent
years has, apparently, been wholly funded by fossil fuel interests.
While every scientific community has its outliers, and these
individuals are entitled to their views, Dr. Soon's outlier views have
been mischaracterized and exploited by the climate change denial
movement for political purposes. His industry-funded publications have
been used in political debate to support the misleading claim that
there is substantial scientific uncertainty about the causes of recent
global warming. Fossil fuel interests thus create and sustain the
impression of continued scientific disagreement and debate about an
issue that is, for all intellectual intents and practical purposes,
scientifically settled.
---------------------------------------------------------------------------
\16\ http://www.nature.com/nature/journal/v435/n7043/full/
435737a.html.
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Industry funding is also a potential source of concern because of
the potential for the biasing of research results, even among respected
scientists working on topics that are not yet settled. An example of
this may be found in the recent dispute over disclosure of funding
sources for research on the environmental impacts of hydraulic
fracturing in oil and gas drilling.\17\ The author of the study, who
failed to disclose private sector logistical and financial support for
his work, including salary to him, personally, has been quoted as
stating that his analysis was not influenced by the source of his
funding.\18\ The problem is that he has no way to know that, and
neither do we.
---------------------------------------------------------------------------
\17\ Donald Siegel et al., Environmental Science and Technology 49:
4106-4112, and 49: 5840.
\18\ http://insideclimatenews.org/news/06042015/fracking-study-
water-contamination-under-ethics-review.
---------------------------------------------------------------------------
Disclosure is essential so that those who use scientific work can
adequately judge both whether or not there was a risk of bias, and
whether that risk may have affected the research outcomes. This has
been a major risk in research on hydraulic fracturing, in part because
the lack of adequate public funding for research on the topic has
forced researchers to look to industry for funds, and in part because
industry secrecy and non-disclosure can make it effectively impossible
to answer the relevant questions without industry cooperation.
The Cochrane Reports, the leading source of systematic reviews in
health care, recently concluded that the funding effect ``is a known
bias that should be assessed.'' However, this is difficult to do on a
case-by-case basis, because absent evidence of fraud, one cannot prove
that a research result would have been different had the funders been
different. The Cochrane researchers thus conclude that bias is best
assessed ``by using empirical methods to identify factors that are
[systematically] associated with research results.'' \19\ Such
assessments of funding effects can only be performed if sources are
known.
---------------------------------------------------------------------------
\19\ Lundh A, Sismondo S, Lexchin J, Busuioc OA, Bero L. Industry
sponsorship and research outcome. Cochrane Data base of Systematic
Reviews 2012;12:MR000033. dx.doi.org/10.1002/14651858.MR000033.pub2.
---------------------------------------------------------------------------
______
Mr. Gohmert. Thank you very much.
At this time we will hear from Mr. Lunny. You are
recognized for 5 minutes.
STATEMENT OF MR. KEVIN LUNNY, OWNER, DRAKES BAY OYSTER COMPANY,
POINT REYES, CALIFORNIA
Mr. Lunny. Good afternoon, Chairman Gohmert, Ranking Member
Dingell, and members of the subcommittee. My name is Kevin
Lunny. My family owned the Drakes Bay Oyster Company and
operates the ``G'' Ranch at the Point Reyes National Seashore
in Marin County, California. On behalf of the entire Lunny
family, our 30 workers who lost their jobs, and the
overwhelming majority of citizens in West Marin, I am here
today to tell you our story.
On December 31, 2015, the National Park Service forced our
iconic 80-year-old oyster farm to shut down. Let me be clear,
we did not fail as a business. This was not bad luck. Rather,
the Park Service engaged in a taxpayer-funded enterprise of
corruption to run our small business out of Point Reyes.
Our family experienced the worst of what a motivated
Federal agency can do to a small business. We incurred millions
of dollars in expenses and debts defending our farm from
relentless misrepresentation, deception, and the complicit
participation of multiple Federal agencies. These actions
culminated in an Environmental Impact Statement that can only
be described as weaponized.
It is important to understand that Point Reyes National
Seashore is not a typical Park Service unit. Point Reyes has
been settled for almost two centuries, with ranches dating back
to the California Gold Rush, and our oyster farm sited squarely
in the middle. The Seashore was created in part to preserve
that unique working landscape. Point Reyes is not Yosemite. It
was never intended to be.
Living and working inside a National Park unit is unusual.
Rather than a mayor, city council, or a police department, we
have only the unelected Park Service serving in all those
capacities. We have no vote and no input. Unfortunately, this
creates an environment ripe for intimidation.
In the early 2000s, the Park Service interpretation of
Congress' intent at Point Reyes changed. No longer was
agriculture at Point Reyes viewed as the cornerstone of the
seashore. Instead, we became the scapegoats in every new issue.
Our existence was suddenly a problem, a roadblock in an
ideological pursuit of pure wilderness.
In an effort to drive out nonconforming uses from Point
Reyes, they accused us of all manner of sins. The pattern
became quite familiar. First the Park Service would make false
claims, either in public hearings or published studies and
reports. Confronted with evidence refuting their claims, they
would ignore the data, refuse to correct the record, and simply
move on. The process would then repeat itself. In a letter to
then-Secretary of the Interior, Ken Salazar, Senator Feinstein
called it ``deceptive'' and ``fraudulent.''
In the course of pursuing these attacks, at various times
we were accused of causing an 80 percent decline in harbor
seals, industrial-level noise pollution, and countless other
claims, all of which were shown to be false. In addition to
this, we were covertly monitored and photographed by the Park
Service for several years. These surveillance photos exonerated
the oyster farm from seal disturbance and were concealed by the
Park Service.
One of the most disturbing actions was when the Park
Service asked another agency, USGS, to review these secret
photos. Their seal expert found no disturbance by our oyster
farm, but the Park Service altered his findings to falsely
claim harm. This issue was documented in a Newsweek story
published in January of this year.
After building this multi-year record of false accusations
against us, the Park Service manipulated the NEPA process
initiated to renew our permit. All of the false science, and
more, was combined into a draft environmental impact statement
so flawed that it was never finalized.
No record or decision was issued. No final public comment
period was held. We were not even sent a copy of that document.
Not only was this flawed, incomplete document used to inform
the Secretary in his decision to evict us, it was also used
against us in Federal court.
The President promised scientific integrity, and we are
here today to ask for this committee's help in securing it.
Congress could right these wrongs. The science dictates that we
should preserve, protect, and promote oysters around the world,
and Drakes Estero is no different. Thank you for the
opportunity.
[The prepared statement of Mr. Lunny follows:]
Prepared Statement of Kevin Lunny, President, Drakes Bay Oyster Company
Good afternoon Chairman Gohmert, Ranking Member Dingell, and
members of the subcommittee.
My name is Kevin Lunny. My family owned the Drakes Bay Oyster
Company and operates the ``G'' Ranch at Point Reyes National Seashore
in Marin County, California. On behalf of the entire Lunny family, our
30 workers who lost their jobs, and the overwhelming majority of
citizens in West Marin, I am here today to tell you our story.
On December 31, 2014, the National Park Service forced our iconic
80-year-old oyster farm to shut down. Let me be clear, we did not fail
as a business. This was not bad luck. Rather, the Park Service engaged
in a taxpayer-funded enterprise of corruption to run our small business
out of Point Reyes.
Our family experienced the worst of what a motivated Federal agency
can do to a small business. We incurred millions of dollars in expenses
and debts defending our farm from relentless misrepresentation,
deception, and the complicit participation of multiple Federal
agencies. These actions culminated in an Environmental Impact Statement
preparation process that can only be described as weaponized.
The history of procedural and ethical missteps by the Park Service
at Point Reyes is stunning in its complexity and boldness. From the
beginning of our stewardship of the farm, false science has been used
as the primary tool to divide our community, intimidate government
officials, and ostracize our family. Our family run oyster farm became
ground zero for scientific misconduct in the United States. No leaders
at the Park Service were willing to stop this campaign of false
science, and no agencies outside of the Park Service were willing or
able to step in despite countless guidelines, policies, and codes of
conduct governing the application of science in the Federal Government.
It is important to understand that Point Reyes National Seashore is
not a typical Park Service unit. Point Reyes has been settled for
almost two centuries, with ranches dating back to the California Gold
Rush, and our oyster farm sited squarely in the middle. The Seashore
was created in part to preserve that unique working landscape. Its
original authorization by Congress in 1962 was secured through a
partnership of agricultural and environmental interests working to
prevent development spreading rapidly up the coast from San Francisco.
Point Reyes isn't Yosemite. It was never intended to be.
Contrary to this historic intention, Park Service management and
interpretation of policies changed around the early 2000s. No longer
was agriculture at Point Reyes viewed as a benefit to the Seashore.
Instead, we became the scapegoats in every new issue. Our existence was
suddenly a problem--a roadblock in the new ideological pursuit of pure
Wilderness, free from ``non-conforming'' uses like agriculture and
mariculture. In an effort to drive those uses from Point Reyes,
starting with DBOC, they accused us of all manner of sins. The pattern
became quite familiar. First the Park Service would make false claims--
either in public hearings, as they did before the Marin County Board of
Supervisors, or in interviews and press statements, published studies,
or reports, Then, when confronted with evidence refuting their claims,
they would ignore the data, refuse to correct the record, and simply
move on. The process would then repeat itself. Senator Feinstein
described it as ``deceptive and potentially fraudulent'' in a letter to
then-Secretary of Interior Ken Salazar.
The Park Service campaign against us began in earnest in early
2007, when they publicly claimed that DBOC was responsible for an 80
percent decline in harbor seals in Drakes Estero. Not only did the Park
Service lack scientific data to support such a serious claim, but they
acknowledged in an email to NOAA just before the hearing that no actual
records of harm existed.
Another early claim by the Park Service was that sedimentation from
oyster production was upsetting the ecological balance in the Estero
and cited a 1991 USGS study as proof. According to that USGS study, and
affirmed by the State Health Department, the water bottom of the Estero
was and is healthy. Regardless, the Park Service misrepresented that
study--they instead attempted to demonstrate harm by substituting data
from a 60-year-old study conducted at the Sea of Japan and attributing
it to our farm.
Perhaps most telling of all, the Park Service embarked on a covert
surveillance operation of Drakes Estero, a fishing expedition seeking
justification for their unsupported claims of disturbance. The results
were only discovered years later and following multiple unfulfilled
FOIA requests. The covert cameras were focused on our boats and our
oyster beds in Drakes Estero, and captured hundreds of thousands of
photos, as often as one photo per minute. Once it was determined that
these photos exonerated us, the Park Service hid them from the Marine
Mammal Commission and National Academy, and excluded them from the EIS
process.
Following publication of the so-called Final EIS, these covert
photos reappeared as the subject of a USGS review. That report, and its
subsequently altered findings, were recently featured in a January 2015
article in Newsweek (``The Oyster Shell Game,'' by Michael Ames,
January 18, 2015). As reported in the article, Dr. Brent Stewart (the
marine biologist and seal expert with the Hubbs-Sea World Research
Institute) was enlisted by USGS to perform an analysis of the photos.
Stewart's independent conclusion was that the Park Service photos
showed no disturbance to seals by DBOC operations--that conclusion,
according to Newsweek, was altered in the final USGS report
commissioned by the National Park Service. The USGS report inferred
that there were in fact some potential disturbances by DBOC boats--a
clear change from Stewart's original findings. In the story, Stewart
says the following:
``Its clear that what I provided to them and what they produced
were different conclusions and different values. In science,
you shouldn't do that.''
Specifically, Dr. Stewart stated that his original phrase, ``no
evidence of disturbance,'' was changed to read ``were associated with
boat activity.'' Months later, USGS asked Dr. Stewart to re-verify his
findings, which he did. Despite this reiteration of his finding of no
disturbance, USGS and the Park Service moved forward with their altered
version, going a step further in the never-completed Final EIS by
implying causation of disturbance to the seals at the hands of our
boats. This causation was explicitly ruled out in Dr. Stewart's
original, unaltered work.
According to the article, when Dr. Stewart discovered the altered
conclusion and asked USGS to correct it, the response he got was: ``No,
it's done. It can't be changed.''
``That was a bit shocking,'' Dr. Stewart said.
After building this multi-year record of false accusations against
us, the Park Service manipulated the NEPA process initiated to renew
our permit. In September 2010, Department of Interior Regional
Solicitor Barbara Goodyear and Point Reyes National Seashore
Superintendent Cecily Muldoon informed DBOC at a meeting that a NEPA
review was required to consider our request to extend our lease and
that the Secretary had already determined that a full Environmental
Impact Statement would have to be prepared (a highly irregular decision
for a simple permit renewal to continue an ongoing activity that's been
in place since 1934).
In an attempt to make amends for past misconduct and start fresh,
Park Service Director Jon Jarvis negotiated and executed a Statement of
Principles with DBOC to guide the process. We were to have a seat at
the table. It was to be a working partnership. It was nothing of the
kind. We were told little, asked less and there was no working
partnership of any kind. Instead, it became evident that a pre-
determined outcome remained the agenda.
Repeatedly during preparation of the EIS--and despite protests from
a wide range of interested parties and observers--the Park Service
doubled down on its use of manipulated data. The harbor seal
disturbance, sedimentation, and more, were compiled into a Draft EIS.
For example, in assessing the noise impact of our small outboard
motor boats, the Park Service, rather than measuring our boats on our
soundscape (as required), instead used the measurements from a 70-
horsepower, 700cc Kawasaki jet ski in New Jersey. When describing how
our oysters caused sedimentation in the Estero, the Park Service again
chose not to use site-specific information, instead substituting data
from a 1955 study from Japan. It should be noted that NPS formal
management policies mandate site-specific measurements for use in these
kinds of studies--obviously not followed in this EIS process. The Park
Service never corrected the record, and was never held accountable.
The Park Service enjoyed free reign to manipulate processes, data,
and policy at Point Reyes. In fact, the Park Service never officially
completed the NEPA EIS process. After 2 years and more than $2,000,000
spent, the final draft was published without a Record of Decision or
notice in the Federal Register. There was no final comment period.
Further, the unofficial final version of the EIS was never submitted to
EPA for review as required by regulation. The Park Service never even
sent us a copy of the so-called ``Final'' EIS. These omissions did not
prevent the Park Service from using the incomplete document as a weapon
against DBOC. The Secretary of Interior, in deciding our oyster farm
would be closed, indicated that he was disregarding the flawed data and
utilizing only those parts of the EIS that were sound--in his sole
discretion. As if to add insult to injury, the Justice Department
submitted approximately 250 pages of this document as evidence during
our challenge of the permit denial in Federal court. In that
submission, DOJ referred to the incomplete document as a ``valid EIS,''
a term without meaning in the NEPA process.
Perhaps most shocking to us--as newcomers to such a complex
process--was learning, one investigation at a time, that there was no
way to stop the Park Service from executing their agenda. When we first
heard the Park Service staff make false accusations against us back in
May 2007, we went to the Park Superintendent to correct what we thought
was a simple mistake. The local Park Service staff were not willing to
correct the false claims, so we went to the Regional Director. No help
there. Then we went to the Park Service Director, and finally the
Secretary of Interior. No one, at any level, was willing to admit that
false science was being used against us, or to at least correct the
record and stop the false accusations.
Numerous Data Quality Act complaints were filed asking the Park
Service to correct the record of false science--with no relief. The
Department of Interior Inspector General investigated and found
misconduct and deliberate misrepresentation of facts, yet failed to
actually stop misconduct or force a correction of the record. Instead,
the three Park Service employees cited in the Inspector General's
report have since been rewarded for their work with promotions and
greater responsibilities. The National Academy of Sciences conducted
two studies on the science in our case, and the Marine Mammal
Commission did one. Despite nearly all reports finding wrongdoing in
what the Park Service did to our family and our community, all of these
agencies and safeguards failed to correct the record or curb Park
Service overreach at Point Reyes. The Inspector General at Interior
told us that they were not equipped to deal with science issues. The
National Academy told us they were not equipped to deal with policy
issues and would not enter the misconduct arena. We felt helpless,
bullied, and ignored.
In fact, even this week the Park Service at Point Reyes continues
its nearly decade-long pattern of false claims in the pursuit of a
predetermined outcome. Now that the Park Service has driven out our
family's oyster farm, they are turning their attention to the ranchers
at Point Reyes. We are heartsick to see the same tactics we faced used
against our neighbors. The Park Service has been using a playbook of
false science at Point Reyes, and there seems to be no individual or
agency who is capable of, or willing to, stop this campaign against our
community.
What the Park Service did to our family was unconscionable. This
polluted legacy of false science has tainted our dealings with state
(California Coastal Commission, California Department of Fish and Game,
California Fish and Game Commission) and Federal agencies (United State
Geological Survey, National Oceanic and Atmospheric Administration,
Marine Mammal Commission), and has resulted in unnecessary regulatory
and legal action against our family and our farm. The Park Service
false accusations and misconduct infected nearly every interaction we
had and impacted otherwise non-controversial processes.
The committee's hearing is entitled ``Zero Accountability: The
Consequences of Politically Driven Science.'' The National Park
Service, armed with an agenda to purge the oyster farm and all
agriculture from the Seashore, ran wild with taxpayer dollars. They
evaded and avoided accountability at every turn. Immediately after the
National Academy of Sciences issued a report highly critical of Park
Service science, we wrote a detailed letter to Park Service Director
Jarvis and asked how Park Service would inform other Federal and state
agencies, local officials, and the public that their scientific claims
and accusations were wrong and further asked how the Park Service would
correct the record. Director Jarvis refused to answer our letter.
The President promised scientific integrity and we are here today
to ask for this committee's help securing it. If a schoolyard bully
takes a ball, he should be caught and punished, and the ball returned.
The situation at Point Reyes is no different. Congress should right
these wrongs. Those who committed fraud should be held accountable.
Drakes Estero is an outstanding body of water, in a remote place, ideal
for growing oysters. Until vilified by activist environmental groups,
our farm had been compatible with Park Service values, the current PRNS
General Management Plan, and the congressionally designated pastoral
zone. Further, our shellfish cultivation lease with the state of
California is still valid through 2029. In purging us from the Seashore
and claiming the Estero as Wilderness, the Park Service has overstepped
its authority and ignored state-level regulatory partners like the
California State Fish & Game Commission.
For almost a century, Point Reyes has been a destination for
visitors from the community, the state, the Nation, and the world. Next
year, the Nation celebrates the National Park Service Centennial. The
first act of that Centennial should be to restore scientific integrity,
right these wrongs, and protect Congress' intent to preserve these
working landscapes.
Thank you for the opportunity to appear before the subcommittee and
tell our story.
______
Questions Submitted for the Record to Kevin Lunny, Owner, Drakes Bay
Oyster Company
Questions Submitted by Chairman Gohmert
Question 1. What affect did the National Park Service shutting down
the Drakes Bay Oyster Company have on your employees? How many
employees were affected? How were they affected and how detrimental was
it to them?
Answer. The most immediate effect was that our 31 workers lost
their jobs, some of whom had been with the farm for decades. Since DBOC
also provided housing to many employees, these workers and their
families, including at least 12 children, have also lost their homes.
These families are part of the Point Reyes family, their children
attend the local schools and churches, and their eviction from the
Seashore is quite literally destroying part of our community.
It is important to understand that these are not unskilled
laborers. Our workers possess specialized skill sets and have spent
years honing their craft. With continued pressure in northern
California from special interests that would like to eliminate
agriculture entirely, opportunities are quickly vanishing for these
workers to find alternate employment.
The Park Service promised to aid these workers in their transition
as part of our farm closure settlement, yet we've seen little evidence
of such aid, and only to a few of the workers. Soon our workers will be
sent packing to attempt to rebuild their lives and families elsewhere.
For supporting documentation, please see Ninth Circuit Amicus Brief
filed by oyster farm workers telling their own story--[This document
can be found on page 65 as a response to Staff question 4.]
Question 2. Please elaborate on the decisionmaking process for the
purchase and financing of the Oyster Farm.
2a. What did your lending bank require to satisfy them that the
lease would not terminate any time soon and allowed them to grant you a
loan to fund your business?
Answer. DBOC used the same Bank (Bank of Oakland) as Johnson Oyster
Company (JOC) used. The Bank was already quite familiar with the NPS
Reservation of Use and Occupancy (RUO), covering 3 acres land above the
high tide line where the oyster buildings are, that would be up for
renewal in 2012 and with the California Fish and Game Commission (CFGC)
shellfish lease, covering all submerged areas of Drakes Estero below
the high tide line) that would be up for renewal in 2029. The Bank was
also aware of the PRNS General Management Plan which supports the
continuation of the oyster farm beyond 2012. The Bank also reviewed the
NPS 1998 Environmental Assessment for the replacement of all of the
oyster farm buildings with new docks, a new hatchery and a new
processing plant. Nothing in this NEPA document suggested the oyster
farming would end in 2012, or ever. The Bank was also given a letter
from Don Neubacher, Superintendent, Point Reyes National Seashore, in
support of the permanent new construction evaluated in the 1998 EA.
With these facts and encouragement from NPS directly, the Bank of
Oakland approved a large loan to JOC to remove and rebuild the entire
oyster farm building complex as approved in the FONSI. JOC did not
begin the NPS supported project and therefore did not borrow the money
from the Bank. Shortly after, JOC sold the farm to DBOC. The Bank
recognized that the same assurances were in place. There were no new
policy changes, no management plan changes and the same supportive
superintendent. Therefore, the Bank of Oakland agreed to a loan for
DBOC that was not required to be paid off until 2015.
For supporting documentation, please see 1996 letter from NPS
Neubacher to the Bank of Oakland supporting the oyster farm expansion
plan, Excerpts from the 1980 PRNS General Management Plan regarding
mariculture in the Seashore, 1998 Environmental Assessment (EA),
Finding of No Significant Impact (FONSI) for oyster farm expansion
plan--[These documents have been submitted for the record and are being
retained in the Committee's official files.]
2b. Would you have gotten the loan and invested approximately
$750,000 in the Oyster Farm if you did not have some assurance that
your lease would be extended beyond 2012? Please specify from whom the
assurance or assurances came and what they were.
Answer. DBOC would not have taken the risk to borrow and invest
more money than we could pay back before the lease expired without
certain assurances. Furthermore, we would not have invested the time
and energy to clean up the site and rebuild the business without the
likelihood that the use could continue beyond 2012. DBOC had all the
same assurances that the Bank of Oakland had before it risked approving
a long-term loan that would extend beyond the renewal date. We also had
other assurances. We have lived and worked on the Pt. Reyes peninsula
since long before it became a unit of the Park Service. We supported
the creation of the seashore because we were told that our way of
life--farming and ranching--would be protected. We knew that all other
ranching and farming reservations of use and occupancy were extended by
special use permits (SUP) upon expiration. We knew that the
congressional sponsors of the Pt. Reyes Wilderness Act both said that
the oyster farm should continue operations in the wilderness area as a
pre-existing use. We knew the PRNS Superintendent and knew that he
supported the long-term continuation of the oyster farm as demonstrated
by his full support of the complete replacement of the oyster farm
building complex only a few years prior. I was personally told by the
Superintendent that he would be happy if we (DBOC) took over
operations. PRNS chose to approve the sale of JOC to DBOC instead of
choosing to exercise its first right of refusal to purchase the balance
of the leasehold interest from JOC, if JOC decided to sell, as allowed
for in the RUO. If the Park Service actually planned to force the
closure of the shellfish farm in Drakes Estero, it would reasonably
have exercised this right to purchase the leasehold interest from JOC
and wind down operations. This gave us further assurance. In 2004, the
California Fish and Game Commission (CFGC) renewed the Drakes Estero
shellfish lease for 25 years. CFGC had full authority over operations
in Drakes Estero and the Park Service RUO was limited only to the
upland area where the buildings are situated--3 acres in total. Last,
in 2004, before purchasing the oyster farm, the Lunny family retained
the services of the law firm Baker & McKenzie to review all of the
above mentioned documents. Baker & McKenzie concluded that there was no
reason that the oyster farm would not be granted an SUP in 2012. The
renewal clause, the enabling legislation, the Point Reyes Wilderness
Act, the seashore GMP, the administrative record showing that all other
agricultural operations within PRNS were issued SUPs at the time that
the RUOs expired. There was no reason to believe that this agricultural
permit for the 3 acres within the pastoral zone would be treated
differently than the others. We feel that we did responsible due
diligence so as not to put our family in harm's way.
For supporting documentation, please see 2011 letter from
McCloskey, Burton, and Bagley in support of the continuation of the
oyster farm and discussing congressional intent--[This document has
been submitted for the record and is being retained in the Committee's
official files.]
2c. Did anyone with the Federal Government give you any reason to
believe that the lease would not be extended beyond 2012? If so, who
was the person?
Answer. Before our family purchased the Drakes Estero oyster farm,
I met with the PRNS Superintendent Don Neubacher several times. I
explained our plans for upgrading and continuing oyster operations in a
more sustainable manner at Drakes Estero, to which Superintendent
Neubacher responded that we were the answer to his prayers.
Superintendent Neubacher told us at the time of our purchase that,
like any lease, the oyster farm lease would need to be renewed at the
end of the current term. He could not guarantee that renewal, although
a specific renewal clause existed in the lease and customary practice
at the Seashore is to renew. Every Federal land use lease expires and
must be renewed--and this lease was no different. With the assistance
of the Superintendent, a renewal clause in place, and assurances from
the Superintendent that it would be treated like any other agricultural
lease at Point Reyes, we proceeded.
A few months after DBOC began operations, spending hundreds of
thousands of dollars to clean up the site and plant oysters to recover
production, Superintendent Neubacher reversed course and told DBOC that
the Park Service could not renew the Reservation of Use and Occupancy
(RUO) because Congress mandated that the estero be converted
wilderness. No record of such a requirement exists in the enabling
legislation, legislative history, or subsequent administrative history
for Point Reyes. Furthermore, as found in the Congressional Record,
even if converted to full wilderness, the oyster farm was to stay as a
pre-existing use. (See above referenced 2011 letter from California
legislators McCloskey, Burton, and Bagley discussing congressional
intent and pre-existing use intentions.)
Question 3. The Park Service went above and beyond to portray you
as a bad steward of the environment. Now that they have closed the
oyster farm, have the attacks continued?
Answer. Yes, the Park Service attacks on DBOC and the Lunny family
have continued following our eviction. Despite complying with the terms
of our settlement, which stipulated that the Park Service would
spearhead the removal of our remaining infrastructure from Drakes
Estero (at their insistence), Park Service staff have repeatedly spoken
to the press in the months since our departure about the condition of
the Estero and inferred that DBOC somehow didn't hold up its end of the
settlement. We have seen numerous articles itemizing ``debris''
recovered from the Estero, or characterizing infrastructure removal as
``cleanup'' and ``mariculture debris,'' which clearly implies that we
were poor stewards of the Estero.
In fact, we dramatically improved the quality and cleanliness of
the Estero throughout our stewardship and always took great care to
leave the Estero better than we found it. Our settlement agreement with
the Park Service stipulated that all cleanup following the December 31
eviction date be handled by them exclusively. It was made clear to us
that our involvement was not wanted.
Recent news stories in which the Park Service continues its attacks
on us and the oyster farm, even after it has closed--[These documents
have been submitted for the record and are being retained in the
Committee's official files.]
Question 4. You have no doubt become an expert on the issues
surrounding wilderness and NEPA in particular. What would you recommend
to this committee that could be done to bring statutory fairness to
NEPA?
Answer. In our experience, NEPA was not used to inform public
officials, but rather to drive a predetermined outcome. As structured,
NEPA can be exploited by any agency willing to engage in such
misconduct. NEPA, as it currently exists, creates opportunities for
administrative abuse by agencies, the DBOC situation being a prime
example. The Department of Interior enjoyed broad leeway to prosecute
their agenda and drive us off our farm.
As referenced elsewhere in my testimony, every aspect of the NEPA
process at Drakes Estero was tainted or manipulated to the Government's
advantage, including:
improper handling and characterization of draft EIS public
comments and arbitrary exclusion of over 7,000 comments in
support of the oyster farm,
establishment of two environmental baselines, in violation
of basic scientific principles,
exclusion of valid data and alteration of independent
scientific findings,
submission and use of false and mislabeled data in order
to overstate oyster farm impacts, and
failure to complete the NEPA process, publish the Final
EIS, seek mandatory fEIS public comments, submit fEIS to
EPA, or even provide a copy of the final EIS to the Lunnys.
Having failed in all of the above areas of NEPA implementation,
Interior and the Park Service even failed to adhere to their own
regulations for abandoning a NEPA process, and insisted in Federal
court that the document was a ``valid EIS.''
Our petition to the Supreme Court to review the Ninth Circuit
decision in DBOC v. Jewell sets out two significant jurisdictional
issues that arise under NEPA that Congress could easily cure:
(1) Whether Federal courts lack jurisdiction under the
Administrative Procedure Act to review an agency action that is
arbitrary and capricious or an abuse of discretion when the statute
authorizing the action does not impose specific requirements governing
the exercise of discretion; and
(2) Whether Federal agencies can evade review of their actions
under NEPA by designating their actions as `conservation efforts' when
the record shows that the action will cause significant adverse
environmental effects.
Because of the asserted lack of jurisdiction under the APA, the
majority in our case could not evaluate whether, as the dissent
concluded, the agency had relied on factors Congress did not intend the
agency to consider and had misinterpreted the law on which it relied.
According to our attorneys, nine circuits have split five ways on this
jurisdiction issue. The courts are also split on the environmental-
review issue.
Congress could improve NEPA by amending it to ensure that Federal
court review under the APA is not limited when considering whether
agency action is arbitrary, capricious or an abuse of discretion.
Equally important, NEPA could be amended to make it clear that agencies
cannot avoid environmental review of actions under NEPA simply by
designating an action as a `conservation effort.' The cynical use of
this phrase by Federal agencies undermines the value of and public
confidence in NEPA. There should be little if any opposition to curing
these procedural deficiencies in NEPA as interpreted by Federal courts.
For supporting documentation, please see DBOC petition to the
Supreme Court more fully discussing these issues--[This document has
been submitted for the record and is being retained in the Committee's
official files.]
Question 5. Was there anything discussed during the hearing that
you felt you were not given ample time to elaborate on or properly
address?
Answer. It was asserted repeatedly during the hearing that the
various investigations and reviews of the NEPA process (and general
Park Service conduct at Point Reyes) found no wrongdoing. This is
simply not the case. In fact, the Department of Interior's Inspector
General and Solicitor, as well as the National Academy of Sciences all
cited substantial misrepresentation and misconduct in violation of
DOI's ethics policies by the Park Service in their reviews, as
evidenced by Rep. Huffman's concession during the hearing that the case
against DBOC had been ``overstated'' by the Park Service and that the
Lunnys had been treated ``unfairly.'' The fact that these various
reviews found wrongdoing yet took no action speaks more to a flawed
internal review mechanism than it does to the facts of this particular
case.
For supporting documentation, please see list of relevant citations
and findings of wrongdoing contained in the various reviews and
investigations--[These documents have been submitted for the record and
are being retained in the Committee's official files.]
______
Mr. Gohmert. Thank you, Mr. Lunny.
At this time normally, as Chair, I would begin the
questioning. But I am going to be here until the end of the
hearing, so I know we have some people that are in markups
voting in committee. So let me start by recognizing Mrs.
Radewagen for 5 minutes.
And before she starts, let me say what I should have said
at the very beginning. We had votes, and I am so sorry. I do
not like to start a hearing that is not promptly on time. But
this is Washington, and we find out it runs a little
differently than some places.
I really appreciate, not just the witnesses but those that
came for the hearing, I appreciate your indulgence, and we sure
want to start closer to on time, but I do not control the
votes. So thank you for your indulgence.
Mrs. Radewagen.
Mrs. Radewagen. Thank you. I want to thank you, Mr.
Chairman and Ranking Member Dingell, for holding this important
hearing today to examine the consequences of inserting
political views into the science that formulates policy. Thanks
also to the witnesses for being here. As legislators, it is our
job to write laws and implement policy. It is that simple.
When outside influences, whether they be political action
groups from the right or left or even foreign nations, insert
themselves into one process, it often becomes detrimental. And
when these outside influences start to have sway in the science
that drives our decision, the impact can be far-reaching, often
beyond the issue of the moment.
In my home district of American Samoa, we rely heavily upon
fishing for our economic well-being and the continued
livelihood of the people. Later this afternoon, the full
committee will be conducting opening statements for a markup on
several bills that will address our Nation's fishing policies,
including Chairman Young's Magnuson-Stevens reauthorization
bill.
I mention this because in that bill, of which I am an
original co-sponsor, we aim to address this exact issue. As we
all know, NOAA is the agency that provides oversight for our
Nation's fisheries. We also know that it is no secret that NOAA
is often influenced by the large environmental lobbies that
have no personal stake in the region when formulating the
``science'' that will be used to set policy for the Nation's
fisheries.
This often leads to questionable findings, which are then
used to smother industry. It is common knowledge that the best
stewards of the environment are most often those who utilize it
for their livelihood. After all, would any fisherman who counts
on a steady and reliable catch want to deplete the resource
that their family relies upon? Would a farmer continuously
plant crops in the same field year after year, thereby
depleting the soil, simply for a larger profit for just 1 year?
While I am sure that these things do happen, it certainly
is not the norm. No, these people care for their land and the
waters that provide their income, certainly much more so than a
lobbyist in Washington. So why is it that they have no say in
how these resources are regulated?
This is just one reason that I am an original co-sponsor of
the Chairman's bill. It will provide greater input from the
local people who use these resources when formulating the data
that sets policy, not an environmental lobby with an agenda
that has no concern for those people or their continued
economic well-being.
Mr. Chairman, as the only member of this subcommittee from
the islands, I would be happy to take special responsibility
for watching over the DOI Office of Insular Affairs and the
island governments for which this committee has jurisdiction.
I want to thank Chairman Gohmert and Ranking Member Dingell
once again for holding this hearing on a subject that impacts
policy making across nearly every agency, and I look forward to
hearing from the panel on how, we have just heard, they have
been affected by this dangerous and misleading practice.
Thank you, Mr. Chairman. I yield back.
Mr. Gohmert. Thank you. Since you are the one
representative on the committee from the islands, should you
see a need for a hearing on oversight on any aspect of that, we
certainly want to cooperate in any way because of your special
position. So thank you.
At this time we are going to recognize the Ranking Member,
Mrs. Dingell, for 5 minutes.
Mrs. Dingell. Thank you, Mr. Chairman. As I said in my
opening statement, this is a very important hearing topic, and
there are a number of critical issues to discuss. One thing I
would like to focus on is the statement that was made by some
of my friends on the other side of the aisle, that government-
funded science is somehow tainted or often manipulated for
predetermined purposes.
Yet the record demonstrates just the opposite. Government-
funded research creates jobs throughout the country and has led
to countless breakthroughs, such as the Apollo program and the
theory of plate tectonics.
Dr. Oreskes, can you discuss existing mechanisms and
methods that are used to detect and correct errors in
government-funded science?
Dr. Oreskes. Yes. Absolutely. Thank you for that question.
Government-funded science works in many respects the exact
same way that any other science works, privately funded, which
is through the peer review process. Every Federal agency that
has scientific work has a mechanism for internal peer review.
In fact, I would argue that in most agencies the peer review is
actually more stringent than it is in academic science, because
there are actually two levels of peer review.
Because typically, in an agency like NOAA, NASA, the U.S.
Geological Survey, or the Weather Service, there is internal
review of the scientific reports first. Then if they are
published in external peer-reviewed journals, there will be a
second level of review as well.
In addition, there is a third mechanism available, and it
is one that has been used by people here at this table today,
which is National Academy of Sciences review. The issue that
Mr. Lunny has raised, in fact, was reviewed for a third time by
the National Academy of Sciences, and unfortunately these
materials were not made available to me before this committee.
But I have had a chance to read the executive summary. One
of the interesting things about this report is that they do
point out some errors that they do think were made in some
earlier work, but they also say that those errors were
corrected. They also point out that the question of whether or
not mariculture should continue in this case is essentially not
a scientific question, but a social, political, and economic
one.
Mrs. Dingell. Thank you. I want to sort of build on what
you just said and ask you, are there differences in the way
peer review works in the context of government science versus
nongovernment science?
Dr. Oreskes. Well, there can be differences in some cases,
and the different agencies sometimes have differences. As an
historian who has studied this, I would say the chief
difference is that the peer review in Federal agencies is
actually more expansive, more capacious, hears from more
different voices, including members of the community, state,
and local agencies.
Industry representatives are often heard, almost always
heard, in Federal reviews in a way that they would not
necessarily be heard in academic life. So actually, the Federal
Government agency review is broader, more capacious, more open,
and I would say actually much more responsive to the needs of
the American people than would be the case if academics were
undertaking that work.
Mrs. Dingell. Thank you, Doctor.
Mr. Chairman, I have a number of unanimous consent requests
of information we would just like to have put in the record. I
do not know if you want to do that at the end of the hearing,
if I should do it now, how you would like to----
Mr. Gohmert. We can wait until the end of the hearing so it
does not take your time. Just whatever you want to do.
Mrs. Dingell. OK. Then I am going to yield back.
Mr. Gohmert. Well, if you are yielding back, we could go
ahead and do it now.
Mrs. Dingell. All right. I will start. Mr. Chairman, I
would like to request unanimous consent to enter into the
record documents pertaining to the assertion that the Houston
toad protective action caused a slowdown in the hazardous tree
removal after January 2012. It is a FEMA letter.
Mr. Gohmert. Oh, OK. The FEMA letter will be accepted into
evidence without objection.
Mrs. Dingell. Thank you, Mr. Chairman. I ask for unanimous
consent to enter into the record an April 2013 letter from the
Texas Department of Public Safety showing the scope of work was
significantly expanded, which would also cause major delays.
Mr. Gohmert. Without objection.
Mrs. Dingell. I ask for unanimous consent to enter into the
record a statement by renowned biologist Dr. Michael Forstner,
who was one of the biologists on the ground during the Bastrop
recovery efforts, and who details the logistical coordination
and inefficiency problems by the contractors that caused him to
sometimes wait for the contractors instead of the other way
around.
Mr. Gohmert. Without objection, so ordered.
Mrs. Dingell. I ask for unanimous consent to enter into the
record the minutes of the Bastrop Wildfire interagency meeting
on September 13, 2011, in which the Fish and Wildlife Service
made it clear to all the agencies in attendance that the ESA
should not prevent the protection of homes, lives, and
property; and that they could not legally require anything more
stringent than measures outlined in the community-negotiated
habitat conservation plan.
Mr. Gohmert. Without objection, so ordered.
Mrs. Dingell. And I think we can go to the next after the
next round.
Mr. Gohmert. All right. At this time I will recognize the
gentleman from West Virginia, Mr. Mooney, for 5 minutes.
Mr. Mooney. Thank you, Mr. Chairman. I just have a couple
questions for Mr. Lunny about his testimony and some followup
as to what you said. I appreciate your coming, and it is
important that we heard from you about what happened, and
certainly share your concerns.
I know you mentioned in your testimony that the National
Park Service has turned its attention to attacking the ranchers
at Point Reyes National Seashore. How is the Park Service's
management of the elk impacting ranches?
Mr. Lunny. In 1998, there was an elk management plan, which
directed the Park Service--one of the alternatives in that plan
and the NEPA process was to allow the elk to roam on the
pastoral zone where the ranches are. That alternative was
rejected.
The alternative selected in the process says that they are
to be moved to an 18,000-acre elk range, which is found in a
wilderness area, and that they would not affect other permitted
uses within the Seashore. The Park Service actually managed it
that way for a couple of years.
Now, since about 2002, the elk have been reproducing on the
pastoral zone, causing very, very serious adverse effects to
the ranchers, and to the other permitted uses. We have been
unsuccessful in working with the Seashore to actually bring
them to remove the elk, as allowed for in the plan.
So, there is a new environmental process that has been
initiated by the Park Service, an environmental assessment, to
look into this. Our concern is that it is the same people, the
same scientists, the same staff, who very much abused the NEPA
process with the oyster farm.
Mr. Mooney. Thank you for that. As followup, are there any
other examples of the National Environmental Policy Act abuse
at Point Reyes?
Mr. Lunny. There are. There are other abuses, in two ways.
For example, we do not believe the National Environmental
Policy Act really required an EIS in the first place for the
oyster farm. Our request to the Secretary of the Department of
the Interior was to renew our existing use, a use that had been
going on for 80 years. There would be, to our understanding, no
change in the effect to the human environment. So, we do not
know what triggered that.
The same thing is true with the ranch environmental
assessment right now. The ranchers have asked to continue their
way of life, the same activity that pre-existed the park by
over a hundred years. We want to continue farming. Now we are
faced with another process that has every potential of harming
our way of life.
Another way that the Park Service has abused the National
Environmental Policy Act is to act without review. One of our
neighbors, one of our ranch neighbors, was kicked out of their
ranch within the pastoral zone, a zone set aside by Congress to
allow grazing and to allow our way of life. That is the
cultural resource Congress asked the Park Service to preserve.
That ranch was kicked out. They renamed it a ``natural
area.'' They have allowed the elk to proliferate there, right
in the middle of all the ranch lands, which is now spreading to
the other ranches. This absolute, complete change of use was
done with no review and no public input. It was done by the
Park Service unilaterally.
Mr. Mooney. Thank you. I know after what you have been
through, it was a lot of effort to come down here and testify.
But it is really important that you bring this to our
attention, so I appreciate you and the other panel experts for
coming down here and sharing your stories with us.
I yield back my time, Mr. Chairman.
Mr. Gohmert. The gentleman has yielded back.
At this time apparently we have a procedural vote, but I
would like to continue for a bit further. So, I recognize the
Full Committee Ranking Member, Mr. Grijalva, for 5 minutes.
Mr. Grijalva. Mr. Chairman, with your indulgence, if
sitting members of this committee--I am a visitor--if they
could go first, that would be fine with me, sir. Thank you.
Mr. Gohmert. Fine. Then Mr. Huffman, you are recognized for
5 minutes.
Mr. Huffman. Thank you, Mr. Chairman and Mr. Ranking
Member, and thanks to the witnesses. I especially want to
welcome my constituent, Kevin Lunny, and your wife, Nancy. It
is good to see you both. Welcome to the Capital.
I want to say a few words, Mr. Chairman, about the nature
of this hearing, and then I will talk about the oyster lease
conflict that for several years has deeply divided the West
Marin community that I represent.
First, Mr. Chairman, this hearing purports to be about
ensuring scientific accountability and accuracy. I have to say
that is a tough sell, given the Majority party's consistent
record of attacking government science, of underfunding science
and research; and frankly, of flouting science, especially when
it comes to our climate and our environment.
Just a few months ago, my Republican colleagues jammed
through a bill aimed at making it harder to list species under
the Endangered Species Act. That bill would require that any
information transmitted by industry in opposition to a species
listing by law would have to be considered ``best available
science.'' That is how much concern for accountability and
scientific accuracy we have at this committee and in this body.
Meanwhile, when it comes to actual science, specifically
the overwhelming consensus of the world's scientists on the
causes and effects of global climate change, my friends across
the aisle simply dismiss it as a liberal hoax.
Meanwhile, we continue to have these so-called oversight
hearings where Federal agencies are attacked and accused of all
manner of misconduct without even giving them the courtesy to
appear and tell their side of the story. Last week, it was an
attack on management of our national forests. The Obama
administration was accused of choosing to let the West burn
because they do not want to allow timber harvest, but the
Forest Service was not even allowed to appear and testify and
tell their side of the story. Today the Majority is again
leveling harsh accusations against Federal officials without
giving them the chance to defend themselves.
Now, you may not agree with the Department of the
Interior's decision regarding Mr. Lunny's oyster lease. A lot
of my constituents disagreed with it. But when you set up a
hearing to accuse Federal officials of fabrication, fraud, and
scientific misconduct, basic fairness requires that you at
least give them a chance to tell their side of the story. And
whether you like it or not, they would tell you a different
side of the story.
They would point out that the allegations of fraud and
deception were investigated by the Department of the Interior's
Inspector General, who found, and I quote, ``no evidence,
documents, EIS revisions, or witnesses that supported these
allegations.'' They were rejected by the Administration's
Scientific Integrity Office.
The National Academy of Sciences, through their peer
reviews, did not always agree with every aspect of the National
Park Service science, but the NAS did not find fraud or
deception. And in the end, they actually agreed with the Park
Service's main scientific findings. So did the U.S. Marine
Mammal Commission, and when this issue was presented as part of
the litigation, so did the courts all the way up to the Supreme
Court of the United States.
So clearly, we have a case where there were debates. There
were disputes about the science. That is the way science works.
But we have to acknowledge that Secretary Salazar's decision to
exercise his authority in favor of wilderness, whether you
agree with it or not on a policy level, has been upheld. It is
final. And the allegations that the Park Service engaged in
fraud and misconduct have consistently been rejected by other
agencies, investigators, the National Academy of Sciences, and
the courts.
Now, in West Marin, we are trying to move on. We are trying
to rebuild a relationship of trust and collaboration between
the National Park Service, the ranchers, the dairymen, and the
environmental community. Most people do not want the divisive
oyster dispute to poison what has historically been a
harmonious relationship among these groups. There is a very
important ranch management planning process underway. It has
been referenced.
The whole point is to provide certainty and a better
working relationship with the Park Service for the dairies and
ranches in the Seashore, including long-term leases, to ensure
that these historic agricultural uses continue in perpetuity as
part of our unique heritage.
It is going to be good for the Lunnys. It is going to be
good for everyone else on the Seashore. I am committed to it.
The Park Service is committed to it. The ranchers and
environmentalists I am working with are committed to it. And
they are starting to talk to each other, understand each other,
and repair relationships that were badly strained, or even
broken, by the oyster issue.
So it is not helpful when this committee re-litigates old
allegations about National Park Service scientific misconduct
in the oyster matter as another partisan attempt to attack the
Obama administration. I do not think this hearing is in the
best interests of my constituents, including Mr. Lunny.
I hope that the real story that comes out of today is the
fact that we are beginning to move on and starting to work
together again in West Marin for the benefit of our great
sustainable agriculture and our environment; and how both of
these values, we hope, will be part of the Point Reyes National
Seashore experience for many generations to come.
I yield back, Mr. Chairman.
Mr. Gohmert. Thank you. Just so there is no question, when
you say this hearing is not in the best interests of Mr. Lunny,
that is not any kind of veiled threat, is it? Right?
Mr. Huffman. Not at all, no. I think my point, and I have
had this conversation with Mr. Lunny, is that he is one of
those ranchers, all of whom need to start building a better and
more trusting relationship with the Park Service and with their
neighbors. We have to put this divisive dispute behind us,
especially since it has already been litigated all the way to
the Supreme Court. It is time for everyone to move on.
Mr. Gohmert. All right. I understand that we have just 7
minutes to get over there and vote, and then we will come right
back. I am so sorry for the temporary recess. But let's be
recessed for 10 minutes and then--well, we can get over there
in 2 minutes; so let's go ahead and do questioning by Mr.
Labrador at this time.
Mr. Labrador. I am glad that I have this opportunity to
follow Mr. Huffman, because this is such a partisan issue that
I am going to read a letter that was written by a very partisan
person.
``The Park Service's latest falsification of science at
Point Reyes National Seashore is the straw that breaks
the camel's back.
The Park Service presented charts of noise measurements
in its draft environmental impact statement that appear
to irrefutably establish that oyster boats at Drakes
Bay disturb the pastoral quiet of the nearby
wilderness.
Here is the problem: the noise did not come from oyster
boats, nor did it come from anywhere near Drakes Estero
or Point Reyes National Seashore. Amazingly, the
decibel recordings the Park Service attributed to
Drakes Bay oyster boats came from jet skis in New
Jersey 17 years ago.
I am frankly stunned that after all the controversy
over past abuse of science on this issue, Park Service
employees would feel emboldened to once again fabricate
the science in building a case against the oyster farm.
I can only attribute this conduct to an unwavering bias
against the oyster farm and historic ranches.
My attention was drawn to the Seashore when I fought to
extend local ranching leases from 5 to 10 years so
there would be sufficient investment and time for the
farmers . . .
The Park Service has falsified and misrepresented data,
hidden science, and even promoted employees who knew
about the falsehoods, all in an effort to advance a
predetermined outcome against the oyster farm.''
I am not going to finish the letter, but I move to enter
this letter into the record. It is signed, ``Sincerely, Dianne
Feinstein, United States Senator,'' because you know she is a
strong Republican and a strong partisan on our side on these
issues.
Mr. Huffman. Would the gentleman yield?
Mr. Labrador. I will not.
Mr. Gohmert. Without objection, so ordered.
Mr. Labrador. So Mr. Lunny, you characterized NEPA as a
weapon. What did you mean by that?
Mr. Lunny. These allegations of harm, harm to harbor seals,
an 80 percent decline was charged. This noise that you brought
up, during the draft we corrected the Park Service. We provided
them with actual noise data from engineers. We showed them in
their policies where they have to measure it themselves. They
cannot go to the literature because their rules do not allow
it. What did they do in what they called the final that was
never finalized? They did the same thing.
Mr. Labrador. Now, Mr. Huffman said that this was litigated
all the way up to the Supreme Court. Did the Supreme Court make
a decision on the merits of your case?
Mr. Lunny. This issue was not litigated in the courts. What
we asked for in the courts was a preliminary injunction that
would allow us to stay open, so the merits of the lawsuit could
be heard.
Mr. Labrador. So the preliminary injunction was rejected,
correct, by the courts?
Mr. Lunny. That is correct.
Mr. Labrador. But the merits of your case were not
adjudicated either way?
Mr. Lunny. That is correct.
Mr. Labrador. OK. Are you worried about any negative
consequences resulting from your appearance here today?
Mr. Lunny. Just as Mr. Huffman mentioned, there could be
consequences. We are terrified. Ranchers that are sitting
behind me are terrified, because we are challenging the Park
Service very seriously. They did lie. They did falsify science,
and they used that science in the courts after we----
Mr. Labrador. Apparently very partisan people like Dianne
Feinstein agreed with you that they lied and they falsified
information. Correct?
Mr. Lunny. Those are her words.
Mr. Labrador. One of my favorite quotes is by Thomas
Jefferson. He said, ``When the people fear their government,
there is tyranny. When the government fears the people, there
is liberty.'' Do you feel that there is liberty or tyranny in
the way that you have been treated by the Federal Government?
Mr. Lunny. We are terrified.
Mr. Labrador. You have paid a heavy price in the battle to
keep your farm. Why was it so important for you to keep
fighting for your farm?
Mr. Lunny. We see this as a much bigger issue. This is not
about the Lunny family. This is about 50,000 visitors a year
who use this destination with their families and love it. It is
about sustainable agriculture in Marin County, California. That
is ground zero for good stewardship and sustainability. This is
in the middle of the working landscapes.
What happens here at the oyster farm, regardless what
anybody else feels, actions speak louder than words. If the
Park Service was successful in evicting the oyster farm, we
have grave concern about what might follow. So we had an
enormous--we were told by Mr. Huffman's staff that 90 percent
of his constituency supported the oyster farm, in her opinion.
Mr. Labrador. Has anybody ever apologized to you for the
falsified information?
Mr. Lunny. No one has apologized. Some of it has been
recognized, and yet the record has not been corrected.
Mr. Labrador. Thank you very much.
Mr. Gohmert. The time of the gentleman has expired. We will
be in recess for 10 minutes.
[Recess.]
Mr. Gohmert. Thank you for your patience. We will resume
the hearing. All four of our witnesses are here. I will take my
5 minutes at this time, I recognize myself for 5 minutes.
Mr. Lunny, we were talking about your situation when we
left. Was there anything else you wanted to point out about
your oyster farm, or the use of it being ended by the National
Park Service?
Mr. Lunny. Well, there is a whole chapter that could be
told about the damage and the harm done by the loss of the
oyster farm. It is interesting we are in the Natural Resources
Committee hearing this, because there is a huge body of science
that supports our industry and our activity throughout the
Nation. We are spending money everywhere else. The Federal
Government is spending money to encourage aquaculture in the
Chesapeake, in the Gulf, and in the Pacific Northwest.
Mr. Gohmert. But I was curious if you had something
specifically about your situation you did not finish speaking
about before we had to take off. But I will give you a chance
to think on that.
Let me jump back to the whooping crane situation. I am a
little concerned about that. We have heard that there is good
science being used by the Government, and yet I am intrigued.
What was the basis? We hear it is all about science and
scientific study. So what was the reason for the Park Service
saying there were 23 birds, whooping cranes, missing, Mrs.
Hartnett White?
Mrs. Hartnett White. I would be happy to explain. The local
wildlife biologist at Aransas National Wildlife Refuge at the
base of the Guadalupe River Basin was in charge of making
annual counts of individual cranes. Those population counts,
called a census survey, a variety of things, are a critical
component of all kinds of Endangered Species Act
implementation.
On the basis of the methodology that he used there, he came
up with that number. Among other things, any birds missing from
areas he had seen them in before, they were presumed dead.
As I said, very soon after those facts--that he claimed 23
birds missing, therefore dead--the Fish and Wildlife Service
issued a report very critical, abandoned the methodology,
called it, as I said, untenable and indefensible, and then
later have articulated actually a much more robust protocol
that I think everyone agrees with it.
But the facts in the case, and also that the judge
considered the core facts for her ruling against the state of
Texas, were based on this very weak methodology for counting
whooping cranes there. The Fish and Wildlife Service, who was,
oddly, never a part of this trial--they could have intervened
at the beginning, or they could have tried to introduce that
opinion of a locally used methodology. But they did not, so
those facts----
Mr. Gohmert. Do you have any idea how long they have been
using that ridiculous methodology?
Mrs. Hartnett White. I do not. But those facts will remain
the key facts in the record if the Supreme Court uses it. I
would like to think, if the system worked right, if in fact the
Regional Office or the Headquarters Office of Fish and Wildlife
Service has decided that a certain methodology is indefensible
and replaces it, somehow the system could absorb that.
Mr. Gohmert. It is still broken.
Well, let me ask one other matter of Commissioner Beckett.
And also, I have a couple of counties--one of the county judges
was saying there are two weeds that they have been told were
going to be listed as threatened, and they had scientific
evidence.
A road was put through there, and it is a threatened
species. They went through and showed, as I understand it,
pictures of these weeds being all over the place. And they
said, ``All you are doing is going through showing they are
everywhere. We actually have a scientific study that trumps
your having people out there showing that they are everywhere,
so you lose. It is threatened.''
But let me ask, what was the meeting that changed FEMA's
tune? They had initially sent letters saying to Fish and
Wildlife that there was no effect, and then that turned around
after a meeting. And you may finish by answering the question.
Ms. Beckett. I believe that the meeting was called out of
concern over the fact that we were coming onto the heels of the
breeding season of the Houston toad. It was the belief of staff
at U.S. Fish and Wildlife Service, as well as Dr. Forstner, who
was mentioned earlier, that significant additional measures
needed to be taken to protect the toad moving forward.
And I do not doubt that that was necessary. The problem is,
if at the end of the day the U.S. Fish and Wildlife Service
determines that you must do XYZ, whatever it is, that is what
you have to do. You have no other choice. There is no
consideration for how that affects or could potentially affect
human life in a disaster.
Mr. Gohmert. Thank you for your answer.
At this time we have done one round of questioning, and in
talking with the Ranking Member here, we will do a second
round. So do you wish to be recognized again for 5 minutes? Mr.
Grijalva, you are recognized for 5 minutes.
Mr. Grijalva. Thank you, Mr. Chairman. Thank you, Madam
Ranking Member. Some really quick questions. But first, if I
may, a unanimous consent request, Mr. Chairman. I ask unanimous
consent to enter in the record two copies of the same letter,
one in English and one in Spanish, from Carlos Porrata, a
retired Ranger from California Parks and Recreation Department,
who presents another side of the Drakes Bay Oyster Company
story, how it treats its workers, and in particular, its Latino
workers. I would pass that on for the record. Thank you.
Mr. Gohmert. Does the gentleman yield back?
Mr. Grijalva. No. If there is no objection, I am fine with
it, thank you.
Mr. Gohmert. OK. Without objection.
Mr. Grijalva. Let me proceed, if I may, Mr. Chairman.
Mrs. Hartnett White, I want to ask you quickly about some
stuff. I want to ask about your climate change work. You have
written that climate change is real but not caused by humans.
Is that a correct summary of your position?
Mrs. Hartnett White. That is not how I would express my
opinion about the issue. I tried to say at the conclusion of my
earlier oral testimony that I think that as the impacts of
certain policy decisions or regulatory decisions that Congress
makes, as the magnitude of those get greater or bigger, I think
the elimination of fossil fuels as rapidly as possible would
have enormous impacts across the world.
But the science that supports the need to do that has to be
extremely robust. I think that the current state of climate
science is not strong enough, nor are the key models validated,
in order to support policy of that magnitude.
Mr. Grijalva. You stated that you are not a scientist
yourself. So whose opinions do you rely on primarily when
coming to that particular view, given the fact in the last 50
years we have a preponderance of science that says that--
virtually all of them agree that most warming over the past 50
years is due to human activities.
Mrs. Hartnett White. I try to, however imperfectly, for the
past 30 years and to the extent of which I am capable, have
continual input from all sides of this issue. I think that the
empirical method is a jewel of Western civilization, whereby a
hypothesis or theory must be confirmed by measured physical
evidence, and that is not the way science by consensus
operates.
Mr. Grijalva. Well, science by consensus, I do not know
what that means. But I would suggest that empirical science,
objective science, needs to be the cornerstone of any decisions
that Members of Congress make relative to issues as delicate
and as far-reaching as something dealing with issues of
drought, issues of warming, change in our climate--particularly
where I live, in the arid Southwest, it is getting worse. So
there has to be a basis for decisionmaking. If the basis is
always under question, there is no basis for decisionmaking
other than subjectivity.
And let me ask you about your funding. The Texas Public
Policy Foundation received from Koch-affiliated foundations
between 2003 and 2010, how much money?
Mrs. Hartnett White. I have no idea. There is a line drawn
in our foundation between those engaged in policy work and
those engaged in fundraising.
Mr. Grijalva. So, it would surprise you to know it is
$500,000?
Mrs. Hartnett White. It truly would, sir. I know there are
multiple sources of funding. For one, funding people can
dedicate contributions to certain areas. And I know there is--
--
Mr. Grijalva. The Donors Trust or Donors Capital Fund
organization, who specialize in assuring that funding is not
disclosed, particularly around the issue of climate denying,
that came out to about $2.5 million. Do you personally receive
any funding from for-profit sources outside your income from
the Foundation?
Mrs. Hartnett White. I am not quite sure I understood that
question.
Mr. Grijalva. Do you personally receive funding from for-
profit sources outside your Foundation income, whether that
takes the form of grants, sponsored travel, speaker fees, or
other options? Those payments and benefits----
Mrs. Hartnett White. I understand. No. No. The answer is
no.
Mr. Grijalva. None from an affiliated fossil fuel industry?
Mrs. Hartnett White. No.
Mr. Grijalva. Mr. Chairman, and I have no reason to
question the answer, but if any affirmation to that statement
can be provided to the committee in the record, I think it
would be very much appreciated, and we could put this little
question to rest. And with that, I yield back.
Mr. Huffman. Mr. Chair, if I might, I did want to object to
entry into the record of that last letter, with great respect
to the Ranking Member, but I really think that a letter
questioning Mr. Lunny's treatment of his employees and implying
that there was some mistreatment of Latino employees is of no
relevance to the subject matter today, and is actually a good
example of the divisiveness and vitriol that I have been trying
to move my community past. I think it has no place in the
record, and I object.
Mr. Gohmert. If the objection were timely, then it would
not have come in. But it has already been entered, so it is not
a timely objection.
Mr. Huffman. Well, could I ask the Ranking Member if he
would consider withdrawing it?
Mr. Grijalva. No, I will not. I think it is relevant. As we
go through these things, and certainly not having the
constituency responsibilities you do to that area, my friend,
we have had inquiries. I have had communications with workers
and with their representatives relative to this issue. This
letter came in. It was germane to the overall discussion.
Mr. Gohmert. I will take that as a no.
Mr. Grijalva. Thank you, Mr. Chairman.
Mr. Gohmert. Time has now expired. The gentleman from
Georgia, Mr. Hice, is recognized for 5 minutes.
Dr. Hice. Thank you, Mr. Chairman.
Mr. Lunny, thank you for being here and for providing your
testimony. I am a bit concerned that the National Park Service
has, as you referred to, created a playbook. Could you explain
what you mean a little bit further by a playbook, and
specifically how that may impact cattle ranchers?
Mr. Lunny. The playbook that I am referring to was how the
NEPA process is initiated, and then how they actually are
undertaken. What we saw in the original EIS was we sat down and
we made an agreement, an agreement signed by then-Pacific West
Regional Director, John Jarvis, that we, the most affected
party, would have an active and meaningful seat at the table as
we went through this process. The agreements were that we would
know what studies would be undertaken, we would understand the
process, and we could be as much a part of it as we could
legally be.
What happened was quite the opposite. We would go out there
in our boats and there would be divers under our racks. And we
said, ``What are you doing? '' They would say, ``Oh, we are
here studying this and we are studying that, and we cannot talk
to you.'' So we actually asked the Park Service, what about our
agreement? And they said, ``Well, that is unenforceable. You
can go to the Web site and read Citizen's Guide to NEPA and you
can find out how you can participate.''
So, the reason we see it repeating with the ranchers, we
were promised that we were going to be involved at this stage
and that stage. They have had lots and lots of meetings, and
they will tell you, ``We have had 50 meetings with ranchers.''
What they did promise is we would have meaningful meetings.
They told us that we would have a part in helping to select
alternatives so there were not poison pills jammed into the
alternatives, as they did in the oyster farm. They made every
single alternative unpalatable and impossible for the oyster
farm to survive.
Now, when we are asking to follow through on that
opportunity to play a part in the decisions of what those
alternatives will look like, the Park Service has told us no.
So we are starting to see the same things unfold----
Dr. Hice. Please hurry with your answer. I have some more
questions.
Mr. Lunny. OK. So that is it.
Dr. Hice. You also mentioned in your testimony that--you
referred to the National Environmental Policy Act as a weapon.
Would you further explain what you meant by that statement?
Mr. Lunny. We believe, by the actions of the Park Service,
that they did not need to use it in the first place for our
permit. It could have simply been renewed. Because they
initiated the permit, they actually put improper and incorrect
information, stuff that was knowingly false----
Dr. Hice. How was it a weapon? How was it a weapon?
Mr. Lunny. It was used as a weapon by giving that to the
decisionmaker, the Secretary of the Department of the Interior;
and even upon our objection, gave it to the Federal courts, and
used against us in both cases.
Dr. Hice. All right. Last, you referred to covert cameras
being used by the Park Service. Did the cameras capture any
disturbance of the seal population? Just generally, was there
anything captured on those cameras that we need to be aware of?
Mr. Lunny. No. There was no disturbance captured. There
were over 300,000 photos taken without our knowledge with a
secret camera program. They showed absolutely zero
disturbances. It was completely exculpatory data. When the
National Academy of Sciences asked for all the information,
they hid it. They did not give it to them. The same was true at
the beginning of the Marine Mammal Commission study. They show
no disturbances, and they would have solved the controversy if
they would have allowed that to be used.
Dr. Hice. Would the Geological Survey show the same thing?
Mr. Lunny. The scientist chosen, the seal/mammal expert
that was chosen to review those very same photos, found
absolutely no disturbances by the oyster farm. Unfortunately,
by the time it made it into the Park Service's environmental
impact statement, it was cited as the reason that they could
tell us there were long-term adverse effects to the harbor
seals because of the disturbances.
Dr. Hice. Ms. Beckett, in light of the massive fires in
Texas in September of 2011, were you ever provided with any
evidence or rationale that slowing down the recovery would help
the toad population?
Ms. Beckett. That the act of slowing it down would--no. My
perception would be the quicker we could get to some of the
ecological restoration projects, the better the toad would be.
That was an assumption on my part. I am not a scientist, but I
do not think the delay was ever intended to be of any benefit
to the toad. It certainly was not of benefit to the citizens,
that is for sure.
Dr. Hice. Good point. Thank you.
Mr. Gohmert. Thank you. The gentleman's time is expired.
At this time we will recognize the Ranking Member, Mrs.
Dingell.
Mrs. Dingell. Thank you, Mr. Chairman.
Obviously, we are really grateful to all of the witnesses
for being here, and it clearly is a very emotional, passionate
issue, as each of us has experienced in our own communities
when things happen like this. I think there is a lot of good
faith between all of the parties here, so I think both the
Chairman and I are hopeful that we are just in an objective,
fact-finding mission here, and that everybody understands that
what we are trying to do is find the facts. And nobody wants
retribution or anything like that.
Having said that, though, your testimony--and I was up very
late last night studying all of these issues, and they are
important issues. But your testimony was titled, ``No
Accountability.'' But I also read Senator Feinstein's letter
last night and was told, Dr. Oreskes, maybe you would be the
best person to answer this.
There was also a National Academy of Sciences study done
addressing the issues, the allegations, that Senator Feinstein
brought up in her letter. I think you may have even had it
there at the table. Could you comment on the National Academy
of Sciences study, please?
Dr. Oreskes. Yes, of course. So I would just like to say,
with all due respect to Senator Feinstein, that she is not a
scientist. And I would say that it seems that she may have
jumped to certain conclusions in this case, a shocking thing
that any politician would do.
Mrs. Dingell. Let's not go there, please.
Dr. Oreskes. OK. I am sorry. The National Academy of
Sciences report is a very long one. It is a very detailed one,
and they look at a lot of different things. But what they
conclude, and I can read to you from that, they say, ``Oyster
mariculture necessarily has ecological consequences in Drakes
Estero, as in other lagoons and estuaries.'' And that is the
bottom line.
So, the whole question is then a judgment call, a value
judgment, about whether or not those consequences are
sufficiently minimal that one might grant an exception and
allow this farming to continue. I am a little surprised that no
one has pointed out, it is my understanding, that Mr. Lunny
bought the farm knowing that the leases would expire in 2012,
because there had already been an agreement to allow them to go
a certain amount of time.
The National Academy also points out that under the
Wilderness Act, the National Park Service has a mandate to
convert a potential wilderness to wilderness status ``as soon
as the nonconforming activity can be removed.'' So in other
words, the National Park Service was obeying the law under the
Wilderness Act.
That is the other thing I would like to add, if I am not
out of line here. I am a little concerned to hear people
talking about the Government overstepping and referring to
necessary government functions. The last I understood,
enforcing the law was a necessary government function.
The Environmental Protection Act, the Endangered Species
Act, the Marine Mammal Protection Act, these are the law of the
land. These scientists are serving Government agencies in
trying to best help those agencies understand how to enforce
that law. These are laws that were passed by large bipartisan
majorities of this Congress, laws that polls show the American
people continue to support.
Mrs. Dingell. Let me ask you a different question. You have
written extensively about the extensive track record of casting
doubt on science as a way to prevent the implementation of
certain public policies. Why is casting doubt on the science of
an issue an effective tactic? What is the effect in someone's
mind when they read in the news that there is still a debate
about an issue, as opposed to reading that the science is
clear?
Dr. Oreskes. Casting doubt is extremely effective because
it leads to delay, and we have heard that discussed here
already. If people--there is a lot of research that shows this,
including industry research; the tobacco industry did extensive
research on this in order to exploit it--if people think the
science is uncertain, then they will think that it is premature
to act.
So if you want to delay action, if you want to prevent
action, if you are manufacturing a product that is hurting
people like tobacco and you want to continue to manufacture
that product, then creating confusion, creating doubt, is a
very effective way to do that.
Mrs. Dingell. So let me ask you, if you can in an objective
way, how can someone tell the difference between what is
legitimate science--tobacco is a good example.
Dr. Oreskes. It is easy.
Mrs. Dingell. But what is it--and that has been
manufactured. How can a consumer that is out there listening to
all of this tell the difference?
Dr. Oreskes. Legitimate science comes from scientists, and
it is often in reports that are long and boring and difficult
to read. That is part of the challenge, and that is part of why
I think the scientific community does need to do more to
explain more clearly, in language that people can understand,
what results like this mean in ordinary language.
But you look to scientists published in peer-reviewed
journals, working in Government agencies and universities, at
the National Academy of Sciences, peer-reviewed work, work that
shows the data. That is where the science is.
Mr. Gohmert. Thank you. At this time we will recognize Mr.
Huffman for 5 minutes.
Mr. Huffman. Thank you, Mr. Chairman. I do want to talk a
bit more about the oyster issue. It is my district. It has been
a huge issue in my district. Even though I do believe the
Majority is up to no good with this hearing, I want to say that
this constituent of mine that you have brought to Washington is
a good and decent guy.
I have had a lot of respect for Kevin and his family, who I
have known for years, since before I was elected to Congress. I
want to make it clear that I consider him an upstanding member
of the community, a good steward. I think he is sincerely
committed to sustainable agriculture and aquiculture.
He and his family have certainly fought the good fight.
They have worked tirelessly to persuade Secretary Salazar that
their oyster lease should be extended notwithstanding Congress'
designation of Drakes Estero as potential wilderness. When the
Secretary chose not to extend the lease, the Lunnys vigorously
contested that decision, as was their right; and I respected
that.
They have made their case at every level of government, all
the way up to the Supreme Court of the United States. And even
though Mr. Lunny has now signed a settlement agreement and
vacated the oyster farm, it is clear that he still feels--that
you still feel, Kevin, that you were wronged by the National
Park Service and Secretary Salazar. I get that, and I respect
that.
I will be the first to acknowledge that Kevin was not
always treated as fairly and respectfully as he should have
been. In their zeal to secure the first marine wilderness on
the West Coast, some advocates overstated the environmental
impacts of the oyster operation. I think some people impugned
Kevin's stewardship and his integrity.
As the conflict escalated, I can assure you that the
insults and poor treatment went both ways. I know that many who
favored wilderness were accused of hating agriculture and
wanting to get rid of all ranches and dairies in the Seashore,
not just the oyster lease. It got very nasty and very personal.
It strained relationships that we are still working very hard
to put back together.
So if you want a story, Mr. Chairman, of a good guy who
worked hard to extend his oyster lease on public land and was
not always treated fairly during the process, this is certainly
that story. But if you want to tell a story of scientific fraud
and misconduct, we just have to acknowledge that those
allegations have been studied and reviewed and rejected at
every level.
Those issues, the disputes about those studies, at the end
of the day did not even form the basis for Secretary Salazar's
decision. He made the decision based on policy and based on
discretion that Senator Feinstein herself gave him through a
specific Act of Congress. It was a policy call.
Now, most of the ranchers in Point Reyes that I talk to,
and I believe I can fairly say most of the ranchers in the
Seashore, have historically had pretty good relationships with
the National Park Service. I think Kevin, going back in the
past, would even say historically he had a decent relationship
with the Park Service. And without exception, I think, the
ranchers that I am working with and that I talk to want to get
back to a good working relationship with the Park Service.
I think we can do that. But again, I think re-litigating
these old accusations from a matter that has been closed at a
time when this community is really trying to move on is not
helpful and productive. That is what I mean when I say that it
is not in my constituents' interests and not in Kevin's
interest.
It is absurd to suggest that that is a threat. I do not
have the power to threaten anyone, and I would not do it if I
did. What I am really saying is that we have an opportunity
here to do the right thing for agriculture and the environment
and to restore a good working relationship with the Park
Service. That is what I am focused on, and the tone and the
direction of today's hearing is not helpful toward that end. I
yield back.
Mr. Gohmert. Thank you.
Well, I have a couple things I wanted to address. One, our
witness, Ms. Oreskes, has indicated in her testimony that Dana
Rohrabacher had organized a hearing distressingly similar to
this one. I am sorry that it is distressingly similar because
the purpose of the hearing is to hear from real people, mammals
called human beings, that have been harmed by the Federal
Government.
I understand that there are toads out there that some
people in the scientific community that accept hearsay without
proper foundation think, well, gee, it may work to the toad's
advantage if we keep an environment out here that has been
burned and destroyed and that no toad can live in--which, by
the way, no mammal can live in.
But I want to go back to Ms. Beckett on the issue of who
was truly adversely affected by the delay of the Government to
allow the rebuilding of the homes in your county.
Ms. Beckett. I am going to answer your question, Chairman,
but if you will allow me, the notion that the project was not
delayed is absurd. We have data of how many trees we cut each
day prior to the consultation and after the consultation, and
the data is very, very plain and simple.
The people that were most affected were the people that
needed the help the most. Those that could afford to hire a
contractor, a private contractor, which there were many--it did
not entirely happen in poor neighborhoods or rich
neighborhoods; it pretty much hit everybody--but the folks that
could afford and did not have to wait, did not. They simply
hired a private contractor.
The contractor came in there, bulldozed up all the trees,
put them in a big pile, burned them, hauled them off, whatever
they wanted to do, because the U.S. Fish and Wildlife Service
was not going to enforce with regard to that. It just simply
was not going to happen. So the people that had to sit and wait
for the help, that had no other resources----
Mr. Gohmert. These were not rich people?
Ms. Beckett. No, sir. These were the people--why FEMA was
there.
Mr. Gohmert. You mean the Government was hurting poor
people?
Ms. Beckett. Yes, sir. Most definitely. Like I said, there
were contractors everywhere doing work on private property,
clearing dangerous trees, because we knew, based on the
production numbers, look, it is going to be 9 months before we
get to your neighborhood. We knew. We could tell people that.
Mr. Gohmert. My time is running out. I want to get back to
Mr. Lunny. Our scientific witness had indicated that it was her
understanding Mr. Lunny acquired the lease knowing that it was
going to run out or expire. So instead of taking that hearsay
testimony as the gospel, let me ask you what you knew at the
time you--how much money did you pay for that oyster farm?
Mr. Lunny. Well, Mr. Chairman----
Mr. Gohmert. Now, you need to be quick.
Mr. Lunny. We spent about $750,000 up front.
Mr. Gohmert. And tell us what information you had in your
mind, government representations to you, at the time you spent
around $750,000 on the oyster farm.
Mr. Lunny. We had done our homework. We recognized that it
was explicitly renewable. Every lease document--this was a
reservation of use and occupancy--was renewable in 2012. We
looked at the sponsors of the wilderness bill. Both had said in
the record that the oyster farm can stay as a pre-existing use
in wilderness because of all of its public values. We did our
homework. We invested into the farm, and yes, we did know that
it was up for renewal in 2012.
Mr. Gohmert. Well, did you have any indications that it
would be renewed, and from whom?
Mr. Lunny. We got a letter from the Park Service in March
of 2005, months after we took over and after we did the cleanup
operations and reestablished the production, that says, ``Now
we have to tell you we legally believe we cannot renew your
lease.''
Mr. Gohmert. And as far as your exhausting all remedies so
that this is final, actually you reached an agreement rather
than get drug through any more fight. Correct?
Mr. Lunny. Our concern is, it was made clear----
Mr. Gohmert. Well, my time is running out.
Mr. Lunny. The answer is yes. We did that.
Mr. Gohmert. All right. Let me just finish, because I have
8 seconds. After what I saw on October 1, 2013 of our
Government keeping veterans out of their World War II Memorial,
spending more money to keep them out than it took to close, I
knew we had a problem. You can expect more hearings to get to
the bottom of what our Government is doing to our people.
Anyone who has any additional information they would like
submitted for the record, you have 5 days to do so.
Mrs. Dingell. I do ask for unanimous consent to enter into
the record a Drakes Bay Special Use Permit, former Secretary
Salazar's decision, consistent with congressional intent.
The report--you want me to do one by one or all of them
together?
Mr. Gohmert. You can do them all together.
Mrs. Dingell. Report by the Department of the Interior's
Office of the Inspector General, articles from the California
press about Drakes Bay Oyster Company, and any relevant
correspondence related to the subject matter of the hearing.
Mr. Gohmert. All right. Without objection, those will be
entered into the record.
I would also ask unanimous consent that an article
entitled, ``Conspiracy Queen;'' an article entitled, ``Response
to the Climate Change Debates;'' an article entitled,
``Merchants of Smear;'' a letter from the Pacific Coast
Shellfish Growers Association in response to today's hearing; a
letter from the East Coast Shellfish Growers; a letter from the
Arctic Slope Regional Corporation in response to today's
oversight hearing; and a letter from Mr. John Hulls, be
admitted for the record. Without objection, that will be done.
Also, if any Member wishes to ask further questions in
writing to the witnesses, then we would ask that any written
responses be provided to this subcommittee within 10 days.
And I can tell you that I am going to ask a written
question, since there was a letter admitted without objection
about Mr. Lunny's treatment of some employees, I am going to
want to know how many employees the Government adversely
affected when they shut down the farm. So you will be getting
that written question from me, Mr. Lunny, and I would like you
to expand on your answer.
With that, this hearing is adjourned. Thank you.
[Whereupon, at 4:25 p.m., the subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Supplemental Documentation Submitted for the Record by Kevin Lunny,
Owner, Drakes Bay Oyster Company
Question 1. There has been debate over the original intention of
Congress in authorizing Point Reyes National Seashore. Can you point to
anything that discusses that intention by the original legislative
authors?
Answer. See below--August 11, 2011 Letter from Pete McCloskey,
William Bagley, and John Burton to DOI Secretary Ken Salazar
***
August 11, 2011
Secretary Ken Salazar
Department of the Interior
1839 C Street, NW
Washington, DC 20240
Re: Continuance of a Permit in Drakes Estero, Point Reyes National
Seashore for the Drakes Bay Oyster Company
Dear Mr. Secretary:
We write to recommend that you exercise your discretion to grant a
Special Use Permit for the continuance of the Drakes Bay Oyster Company
in the Point Reyes National Seashore when its present Reservation of
Use and Occupancy expires in November, 2012.
We write as three former Northern California legislators who were
personally involved in either the transfer of state tidal lands in 1965
to the Park Service, the necessary additional $35 million funding
authorized in 1969 to acquire the 20,000 acres of ranches for the
Park's pastoral zone, or the 1976 Wilderness Act which assigned a
portion of the Park to wilderness, but retained the 20,000 acres of
ranchlands to be operated by lease to private ranchers and the oyster
farm to continue to operate as a ``prior, non-conforming use.''
As you know this has been a controversial issue since April, 2007
when Superintendent Don Neubacher and a senior Park Service scientist
accused the oyster operator of endangering the seal population in the
Park. The charges were subsequently determined to be false by the
Department of Interior in 2008 and by a National Academy of Sciences
panel in 2009. Not until 2010, did the Service release three years of
logs and daily photographs secretly taken of the seal pupping areas
which disclosed that kayakers and others than the oyster operators were
the primary cause of seal disturbances.
For some ten weeks we have been talking to leaders on both sides of
the controversy and examining the documents, particularly with regard
to the environmental issues and the legislative history of the
Seashore. The Seashore is somewhat unique in the National Park System
in that from the beginning, it was intended to have a considerable part
of its area, consisting of the historic scenic ranches being leased
back to their owners, and to retain an oyster farm and California's
only oyster cannery in the Drakes Estero. The Estero sits in the middle
of those 20,000 acres of ranches designated as a pastoral zone; the
oyster plant and cannery on the shores of Drakes Estero are in that
pastoral zone.
Point Reyes National Seashore was created in 1962 through the
leadership of three remarkable men, Congressman Clem Miller, Secretary
of Interior Stuart Udall, and Park Director Conrad Wirth.
Wirth's words to the Congress and to the people of Marin County
in 1961 were specific:
``EXISTING COMMERCIAL OYSTER BEDS AND THE OYSTER CANNERY AT
DRAKES ESTERO . . . SHOULD CONTINUE UNDER NATIONAL SEASHORE
STATUS BECAUSE OF THEIR PUBLIC VALUES. THE CULTURE OF OYSTERS
IS AN INTERESTING AND UNIQUE INDUSTRY WHICH PRESENTS
EXCEPTIONAL EDUCATIONAL OPPORTUNITIES FOR INTRODUCING THE
PUBLIC, ESPECIALLY STUDENTS, TO THE FIELD OF MARINE BIOLOGY.''
In 1965, Assemblyman William Bagley, at the request of the Park
Service, caused to be enacted A.B. 1024, conveying the State of
California's tidelands and bottomlands within the Seashore to the Park
Service, reserving however the fishing rights which then included shell
fishing rights, traditionally leased by the state for oyster
production.
Then in 1969, when the initial appropriation of $19 million became
exhausted, with the threat of subdivision hanging over the Seashore, a
second term Congressman was able to convince a reluctant Nixon White
House to grant an additional $35 million to purchase the remaining
ranch lands, which were to be continued to be operated in the 20,000
pastoral zone surrounding the Estero.
In 1972, the late Congressman Phil Burton gave the Bay Area the
priceless gift of the Golden Gate National Recreation Area (GGNRA)
situated just south of Point Reyes.
In 1974, Congressman John Burton and Senator John Tunney introduced
bills to designate a portion of the Seashore as wilderness. Department
of Interior Secretary Jon Kyl pointed out that the State of California
had reserved fishing rights in the submerged lands, which was
inconsistent with the submerged lands qualifying as pure wilderness.
The bills were amended to add 8,000 acres surrounding and including
Drakes Estero as potential wilderness. Both Congressman Burton and
Senator Tunney testified that the oyster farm was intended to continue
as a prior, non-conforming use within the potential wilderness area.
BURTON: ``THERE ARE TWO AREAS PROPOSED FOR WILDERNESS WHICH MAY
INCLUDED AS WILDERNESS WITH `PRIOR, NON-CONFORMING USE.' ONE IS
DRAKES ESTERO WHERE THERE IS A COMMERCIAL OYSTER FARM. . . .''
TUNNEY: ``ESTABLISHED PRIVATE RIGHTS OF LANDOWNERS AND
LEASEHOLDERS WILL CONTINUE TO BE RESPECTED AND PROTECTED. THE
EXISTING AGRICULTURAL AND AQUACULTURAL USES CAN CONTINUE.''
Prior to the passage of the Act, both the Citizens' Advisory
Commission of the GGNRA and the Sierra Club also concluded, and so
recommended that the oyster farm and cannery could continue as a prior,
non-conforming use.
For your convenience, we have attached the precise words of Park
Director Wirth in 1961, and the words of the principals approving the
continuation of the oyster farm at the time of the 1976 Wilderness Act
as Exhibit A. Relevant excerpts from the California Bancroft Library's
historical essay, SAVING POINT REYES NATIONAL SEASHORE, 1969-70, are
attached as Exhibit B, and the affidavit of Assemblyman Bagley, with
related documents attached as Exhibit C.
We think you will find the words of former Assistant Secretary
Nathaniel Reed (last page of Exhibit A) or particular significance.
In our inquiries we have identified three opposing views held by
honorable people, all of whom, however, have forgotten or want to set
aside as no longer applicable, the commitments made in 1962 and
particularly their own words and those of Senator Tunney, Congressman
Burton and Assistant Secretary Reed regarding the preservation of the
oyster farm as a non-conforming use in 1976/1975.
Former State Secretary of Resources Huey Johnson argues that all
private operations in National Parks should be eliminated. Another
group center on the single sentence in the House Committee Report
accompanying the 1976 Act, setting forth the expectancy that non-
conforming uses will be removed with all due speed. A third view is
held that whenever there is a chance to add additional ``pure''
wilderness, for use only by kayakers, canoeists and hikers, the
opportunity should be seized.
We have weighed these views, but believe that they are far less
compelling than the commitments made back in 1976 and earlier. We are
satisfied after hearing from several leading scientists outside the
Service, and from the report of the National Academy of Sciences panel
requested by Senator Feinstein that the 77 years of operation of the
oyster farm has not endangered the local seal or bird life populations.
The cannery is perhaps visited by more school children and other
visitors than any other spot in the Park. The Academy of Sciences
panel, in addition to finding that there was no substantial evidence of
any danger to the seal population, has pointed out that the oyster farm
serves as a wonderful basis for future research. Finally, producing 80%
of the Bay Area's oysters, over 440,000 pounds annually, for human
consumption, it meets the Commerce Department's new emphasis on local
mariculture.
Each of us agreed some weeks ago that we would not make this
recommendation to you if we found that the oyster farm represented any
significant danger to the Estero's environment, its seal population or
its bird life. It's only drawback seems to be that kayakers, canoeist
and hikers will see some 140 acres of the 2,200 acre Estero covered
with oyster racks and bags at low tide when they go out to see the
seals and wildlife.
The convincing point was made by the Coastal Commission biologist,
Dr. John Dixon, when he stated: ``I don't think there is any non-
correlative evidence either way whether the oyster operation endangers
the seal population.'' This of course put the lie to the Park Service's
claims back in 2007 that started this whole controversy.
We are also compelled to note that the deliberate
misrepresentations of science by the Park Service, and particularly its
failure for three years to disclose its logs and photographs which not
only disproved its contentions of damage to the seals by the oyster
farm, but put the blame on kayakers and others for most of the seal
disturbances has created a wide distrust of a one of the few remaining
revered institutions of our Government. None of us have ever met a Park
Ranger who wasn't courteous, helpful, truthful and competent. The
Neubacher Administration, however has been guilty of misconduct and
deceit, as found by the Department's Inspector Genera]. We have
attached a summary of the deceits and withholding of factual data
prepared by a Member of the National Academy of Sciences whose home
overlooks the Seashore as Exhibit D. A copy of the Seashore's brochure,
with a map of the pastoral and wilderness areas is appended as Exhibit
E.
It seems highly possible to us that the there are elements in the
Park Service Administration, which have had a secret agenda for some
years to drive out not only the oyster farm, but the privately-leased
ranches as well. There have been a whole series of small impositions on
the ranchers which serve to make their operations more difficult. As of
last weekend, for example, the Park Service had made no attempt to keep
the wild tule elk herds in the northern wilderness section of the
Seashore from breaking out onto the cattle ranches in the pastoral
zone.
We think it might go a long way to restore public confidence in the
Park Service to hold appropriate congressional committee hearings to
ascertain why the Service seems dedicated to setting aside the words of
Director Wirth of fifty years ago, and the testimony of Congressman
Burton and Senator Tunney and the words of former Assistant Secretary
Nat Reed regarding the 1976 Wilderness Act.
Thanking you for your public service which has done so much to
restore the integrity of the Department of Interior after the scandals
of the previous Administration, we remain,
Respectfully,
William T. Bagley,
California State Assembly, 1961-74.
John L. Burton,
Member of Congress, 1974-82.
Pete McCloskey,
Member of Congress, 1967-82.
Attachments: Exhibits A-E [These documents have been submitted for
the record and are being retained in the Committee's official files]
Question 2. It has been asserted that the IG, Solicitor's Office,
National Academy of Sciences, and others who reviewed this process
found no wrongdoing, you assert otherwise. Can you point out specific
examples of wrongdoing cited in these various reports?
Answer. See below--Memo-Report Excerpts and Quotes on NPS False
Science
***
Weaponizing, Falsifying, Fabricating and Misrepresenting Science by the
National Park Service
Excerpts from: Inspector General Investigations, National Academy of
Sciences Reports, Environmental Impact Statements
and Other Reports on National Park Service Science
at Drakes Estero, Point Reyes National Seashore, CA
Senator Dianne Feinstein wrote to Interior Secretary Ken Salazar on
March 29, 2012:
The Park Service's latest falsification of science at Point
Reyes National Seashore is the straw that breaks the camel's
back. I am frankly stunned that after all the controversy over
past abuse of science on this issue, Park Service employees
would feel emboldened to once again fabricate the science in
building a case against the oyster farm. I can only attribute
this conduct to an unwavering bias against the oyster farm and
historic ranches. The Park Service has falsified and
misrepresented data, hidden science and even promoted employees
who knew about the falsehoods, all in an effort to advance a
predetermined outcome against the oyster farm. Using 17-year-
old data from New Jersey jet skis as documentation of noise
from oyster boat engines in the estuary is incomprehensible. It
is my belief that the case against Drakes Bay Oyster Company is
deceptive and potentially fraudulent.
Between 2007 and 2013, National Park Service science was
investigated and reviewed six different times, each highly critical,
including the Inspector General, DOI (2008 on NPS and 2013 on NPS and
USGS), National Academy of Sciences (2009 and 2011), DOI Office of the
Solicitor, Frost (2011), and National Marine Fisheries Service-NOAA on
NPS Science in the NPS DEIS (2011).
Congress statutorily mandated review of the validity of NPS
science. NPS initiated other reviews. Independent scientists submitted
scientific misconduct petitions. This list does not include four Data
Quality Act Complaints, or requests for investigations that
disappeared, were ignored or otherwise not acted upon. It does not
include the Marine Mammal Commission Report, the DEIS, the incomplete
FEIS, or the Federal court case.
This document is a representative selection of findings from these
six reports.
Note: The following items (text in italics) are all direct quotes
pulled from the source reports.
U.S. Department of the Interior, Office of the Inspector General
Report, 2008 \1\
---------------------------------------------------------------------------
\1\ United States Department of Interior Office of Inspector
General. Investigative Report Point Reyes National Seashore. 2008.
---------------------------------------------------------------------------
On NPS Misrepresenting Scientific Research
Our [IG] investigation determined that in this report and in
the newspaper article, PRNS Senior Science Advisor Sarah Allen
had misrepresented research regarding sedimentation in Drakes
Estero completed in the 1980s by U.S. Geological Survey
scientist Roberto Anima. (pg 2)
On Failure to Correct Misrepresentation After Being Informed of It
After reading those articles, [USGS Scientist] Anima told [NPS
Chief Scientist] Allen that his report did not state that he
had ``collected sediment cores from the estero and identified
pseudo feces of oysters as the primary source for sediment
fill.'' He [USGS Scientist Anima] said he was ``tick[ed] . . .
off'' that she had misrepresented his findings that way . . .
Anima said he let Allen know he was ``not happy'' with her
portrayal of his research. According to him, she did not offer
a ``good justification'' for inaccurately referencing his work.
(pg 16)
On NPS Scientific Misconduct
While Allen denied any intentional misrepresentation of Anima's
work, our [IG] investigation revealed that Allen was privy to
information contrary to her characterization of Anima's
findings in the Sheltered Wilderness Report and other public
releases, and she did nothing to correct the information before
its release to the public. (pg 2)
National Academy of Sciences Report on NPS Science Reports at Point
Reyes National Seashore, 2009 \2\
---------------------------------------------------------------------------
\2\ Committee on Best Practices for Shellfish Mariculture and the
Effects of Commercial Activities in Drakes Estero, Pt. Reyes National
Seashore, California; National Research Council. Shellfish Mariculture
in Drakes Estero, Point Reyes National Seashore, California. 2009.
Link: http://www.nap.edu/catalog/12667.html.
---------------------------------------------------------------------------
On NPS Misrepresenting Scientific Research
While NPS in all versions of [NPS Report] Drakes Estero: A
Sheltered Wilderness Estuary accurately depicted the ecological
significance and conservation value of Drakes Estero, in
several instances the agency selectively presented, over-
interpreted, or misrepresented the available scientific
information on potential impacts of the oyster mariculture
operation. (From NAS Report Section ``Accuracy of the
Scientific Conclusions Released by NPS to the Public,'' pg 71)
On NPS Scientific Misconduct
Consequently, [NPS Report] Drakes Estero: A Sheltered
Wilderness Estuary did not present a rigorous and balanced
synthesis of the mariculture impacts. Overall, the [NPS] report
gave an interpretation of the science that exaggerated the
negative and overlooked potentially beneficial effects of the
oyster culture operation.
On NPS Credibility and Motivation
NPS has issued two documents correcting and clarifying Drakes
Estero: A Sheltered Wilderness Estuary--``Acknowledgment of
Corrections to Previous Versions of the Park News Document
Drakes Estero: A Sheltered Wilderness Estuary,'' posted on July
25, 2007 (NPS, 2007e), and the September 18, 2007 document,
``National Park Service Clarification of Law, Policy, and
Science on Drakes Estero'' (NPS, 2007d). The Clarification
document represents the most accurate NPS release of science
relating to mariculture impacts, although it does not fully
reflect the conclusions of this committee. It appears that
hasty responses to local stakeholder concerns by NPS led to the
publication of inaccuracies and a subsequent series of
retractions and clarifications during this process from 2007-
2008, which cast doubt on the agency's credibility and
motivation. (pg 73)
Frost Report, Office of the Solicitor, Department of Interior, Public
Report on Allegations of Scientific Misconduct at Point Reyes National
Seashore, 2011 \3\
---------------------------------------------------------------------------
\3\ Frost, Gavin. Office of the Solicitor, United States Department
of the Interior. Public Report on Allegations of Scientific Misconduct
at Point Reyes National Seashore, California. 22 March 2011. Link:
http://www.doi.gov/news/pressreleases/loader.cfm?csModule=security/
getfile&pageid=238859.
---------------------------------------------------------------------------
On NPS Scientific Misconduct
Apparently truthful responses from the NPS employees reveal a
collective but troubling mind-set that S1 \4\ enjoyed the
unrestricted freedom to research harbor seals at upper Drakes
Estero in any manner s/he deemed fit, without the corresponding
need to share any data generated, so long as the research was
not closely evaluated and the research method(s) remained, in
the NPS employees' unilateral view, inferior or ancillary to
other research, such as volunteer observations. That
questionable state of mind, even if analyzed in conjunction
with speculation that digital photos showing DBOC-caused
disturbance(s) of harbor seals would have magically become
``sound'' science and ``compatible'' research, and thus would
have been immediately used and disclosed, fails to meet the
demanding standard of intent needed to prove falsification and
misrepresentation. The evidence instead confirms that the NPS
employees needed better instruction and more effective
supervision; someone in their chain-of-command should have
recognized the errors, sounded the alarm, and demanded
disclosure of all research which a reasonable, objective
scientist could interpret as data suggesting that DBOC
mariculture operations did not disturb harbor seals at upper
Drakes Estero on May 8, 2007, or March 14 2008. (pg 32)
---------------------------------------------------------------------------
\1\ 4 ``S1'' identifies PRNS Sarah Allen.
---------------------------------------------------------------------------
On NPS Scientific Bias
Boredom with, or insufficient time for, the labor-intensive
analytic review process does not excuse any failure to
scrutinize all of the research, which S1 voluntarily initiated
to ``detect natural and human-induced changes'' in the harbor
seal populations. Quite possibly, digital photos from the
monitoring cameras definitively prove or disprove that DBOC
mariculture operations negatively impact harbor seals at upper
Drakes Estero. As a direct consequence of S1's failure to
process the data completely and speedily, potentially powerful
evidence remains unknown. This misconduct arose from incomplete
and biased evaluation and from blurring the line between
exploration and advocacy through research. (pg 35)
On NPS Violations of the Code of Scientific and Scholarly Conduct
Further, SE2, S1, S2, S3, and S4 \5\ violated NPS Code of
Scientific and Scholarly Conduct language, from the Interim
Guidance, that not only required timely and ``full disclosure
of all research methods used [and] available data,'' but also
obligated the NPS employees to ``communicate the results of
scientific . . . activities, objectively, thoroughly, and
expeditiously.'' . . . On and before May 1, 2009, these NPS
employees, all of whom ``work[ed] with scientific . . .
information in performing their duties,'' knew about the camera
research project, and partial results associated therewith, yet
failed to notify the informant, DBOC, the NAS, and the NRC
Committee . . . (pg 35)
---------------------------------------------------------------------------
\5\ ``SE2'' is PRNS Superintendent Don Neubacher; ``S1'' is PRNS
Sarah Allen; ``S2'' is PRNS Ben Becker; ``S3'' is PRNS David Press;
``S4'' is NPS David Graber.
Finally, the decision made by [NPS employees] S3, S2, and S1,
who collectively but covertly used the photographic research to
refute arguments unrelated to the information's specific
scientific purpose, was arguably inappropriate and violative of
the NPS Interim Code provision requiring ``full disclos[ure].''
The NPS scientists referenced the ``ancillary'' or
``incompatible'' digital data, which rebutted the informant's
assertions regarding tidal activity and Sunday employment, in
an uncontested, and seemingly improper, effort to shield their
own scientific findings and to defend the reputation/
reliability of volunteers who allegedly observed pinniped
disturbances on April 29 2007. (pg 36)
National Academy of Sciences, Review of NPS Science (mandated by
Congress \6\), 2012 \7\
---------------------------------------------------------------------------
\6\ ``Point Reyes National Seashore, Extension of Permit.'' Public
Law 111-8. October 30, 2009. 123 STAT 2932.
\7\ Committee on the Evaluation of the Drakes Bay Oyster Company
Special Use Permit DEIS and Peer Review; Ocean Studies Board; Division
on Earth and Life Studies; National Research Council. Scientific Review
of the Draft Environmental Impact Statement: Drakes Bay Oyster Company
Special Use Permit. 2012. Link: http://www.nap.edu/
catalog.php?record_id=13461.
---------------------------------------------------------------------------
On NPS Lack of Evidence
At the request of the NPS, the National Research Council
conducted a study to help clarify potential impacts of
shellfish farming on the ecology and socioeconomics of Drakes
Estero (NRC, 2009). After evaluating the limited scientific
literature available on Drakes Estero and relevant research on
other similar ecosystems, the committee concluded that ``there
is a lack of strong scientific evidence that shellfish farming
has major adverse effects on Drakes Estero'' at current (2008-
2009) levels of production and operating practices (NRC, 2009).
(pg 9)
On NPS Failure to Follow CEQ/NEPA Guidelines
The DEIS employs two different baselines in assessing the
impacts of the no action and action alternatives. In a typical
EIS, the ``no action'' alternative is considered the current
baseline environmental condition against which the impacts of
the action alternatives are compared. However, for the DBOC
Special Use Permit EIS, the no action alternative (alternative
A) refers to a change from the current condition (the Special
Use Permit would expire and DBOC would cease operation) and
shifts to a new, future condition that is unknown. Impacts
associated with action alternatives B, C, and D (10 year
extension of the permit for the mariculture operation) are then
compared to this projected future ``baseline'' (alternative A),
while impacts of alternative A are compared to the better known
existing conditions (i.e., with DBOC facilities and operations
as described for alternative B) as the baseline. This
introduces an extra level of uncertainty to the evaluation of
the action alternatives and creates asymmetry in the
assessments conducted for the action alternatives relative to
the no action alternative. By invoking two baselines, the DEIS
essentially contains two separate impact assessments, one for
the no action alternative and another for the action
alternatives, such that there is not a common basis for
comparing the potential impacts of the no action alternative
(A) with the potential impacts of the action alternatives (B,
C, and D). (pg 3)
On NPS Failure to Have a Proper No-Action Alternative Pursuant to NEPA
While reviewing the scientific information and analysis in the
Draft Environmental Impact Statement (DEIS), the committee
found common issues across resource categories that are related
to how the DEIS is framed and merit discussion upfront . . .
The committee recognizes that, in NEPA practice, the ``no
action'' alternative is usually considered the ``baseline''
under which current environmental conditions are compared. In
these situations, environmental conditions would not change
under a ``no action'' alternative. However, in the case of the
DBOC, if the Secretary of the Interior took no action, the
Special Use Permit (SUP) would expire and alternative A would
be implemented, which would change current conditions. Given
that the environmental impacts associated with existing
conditions are known with greater certainty than those
associated with alternative A (potential future conditions),
assessing the impacts of action alternatives B, C, and D
against ``no action'' alternative A increases the level of
uncertainty in conclusions about the impacts of alternatives B,
C, and D. Also, the use of two baselines introduces asymmetry
into the analysis such that the impacts of ``no action''
alternative A cannot be compared to the impacts of the action
alternatives (alternatives B, C, and D). This becomes a
particular problem in the Summary of Environmental
Consequences, which presents the potential impacts of the four
alternatives as if they were comparable, even though the
impacts of the ``no action'' alternative A are assessed using a
different baseline than that of the action alternatives (B, C,
and D). (pg 13-14)
On NPS Manipulation of NEPA Impact Categories
It is noteworthy that only one category of beneficial impact is
used, hence effects that may range from minor to major
beneficial cannot be distinguished. (pg 18)
On NPS Manipulation of NEPA Impact Categories--II
As mentioned in Chapter 2 of the committee's report, there are
no gradations for beneficial impacts in parallel with the
minor, moderate, and major gradations of adverse impacts. This
results in an asymmetric assessment of the no action (A) and
action alternatives (B, C, and D) in the DEIS. For instance,
under alternative B, DBOC's operations would be largely
unchanged from existing conditions, while under alternative A,
DBOC would cease operation. Alternative A ``could result in
long-term major adverse impacts to California's shellfish
market.'' Alternative B ``would result in a long-term
beneficial impact to shellfish production in California.'' If
eliminating DBOC entails a major adverse impact, then
maintaining DBOC should lead to a major beneficial impact . . .
The conclusions reached in the DEIS might change if a more
rigorous, cost-benefit analysis were conducted . . . Because
the DEIS economic impact assessments were not based on
quantitative metrics, it includes inferences and
interpretations of impacts that have a high level of
uncertainty. (pg 41)
On NPS Manipulation of NEPA Impact Categories--III
Across the eight resource categories reviewed by the committee,
the most common concern that arose was the lack of an
assessment of the level of uncertainty associated with the
scientific information on which conclusions were based. (pg 47)
On NPS Manipulation of NEPA Impact Categories--IV
The DEIS did not include negligible as an impact level,
although negligible impact is a useful category provided in the
examples for the NPS NEPA guidance document ``Summary of
Regulations and Policies--Impact Indicators and Criteria,''
Director's Order 12. (pg 47)
On NPS Factual Errors in the DEIS
The Kelly et al. (1996) paper is the most relevant study
concerning the impacts of mariculture activities on shorebird
behavior and population distributions and it is referenced in
the DEIS. Unfortunately, the DEIS contains several factual
errors in Chapter 4 with regards to this paper . . . While it
might be true that DBOC operations influence foraging behavior,
it is not clear how they would have an adverse impact if the
acreage available for foraging is not a limiting factor,
especially since the actual acreage used for bag culture has
been less than permitted acreage. The DEIS could be improved by
correcting these factual errors regarding the Kelly et al.,
1996 citation. (pg 29)
On NPS Factual Errors in the DEIS--II
The DEIS does not include references to support the conclusions
regarding coho salmon in the Estero. Coho are not currently
found in Drakes Estero, but ``the watershed is included in the
critical habitat designation because it has habitat elements
required by the coho salmon.'' (pg 31)
On NPS Failure to Obtain Proper Sound Data
The DEIS concludes that alternatives B, C, and D would present
a major adverse impact. The committee assigns a high level of
uncertainty to this conclusion regarding impacts of DBOC
operations on the soundscape because there are no data on
underwater sound, lack of a scientifically based sampling
scheme (e.g., poor spatial and temporal coverage), lack of
direct measurements of sound levels associated with DBOC
activities, limited data on how noise impacts harbor seals at
the population level, unknowns related to boat traffic with
potential decreases or increases in production, and uncertainty
associated with potential changes in human noise from onshore
improvements proposed in alternative D. Because of these
unknowns, the committee finds that other conclusions could be
reached for alternatives B, C, and D, i.e., adverse impacts
could be classified as moderate or minor, rather than major,
even with the impact criteria used in the DEIS . . . There
would be less uncertainty in the DBOC sounds sources if the
DEIS did not use proxies for sound levels and if the
measurements accounted for duty cycle (continuous vs.
intermittent vs. impulse sources) to estimate the percent of
time various DBOC activities impact the soundscape. (pg 39)
National Marine Fisheries Service-NOAA, 2011 \8\
---------------------------------------------------------------------------
\8\ National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, United States Department of Commerce. Memo
and Comments on Draft Environmental Impact Statement for Drakes Bay
Oyster Company Special Use Permit. 17 November 2011.
---------------------------------------------------------------------------
On NPS DEIS--Comments from the National Marine Fisheries Service on the
Draft Environmental Impact Statement for Drakes Bay Oyster Company
Special Use Permit
Based on a review of our records relating to the trust
resources for with NMFS has responsibilities under the Marine
Mammal Protection Act, the endangered Species Act, and the
Essential Fish Habitat provisions of the Magnuson-Stevens
Fishery Conservation and Management Act:
Based on the evidence and information that has been made
available, the harbor seal population in Drakes Estero
appears stable and healthy. We have no documentation of any
recent disturbance of harbor seals by the aquaculture
operation. We have no records of violations by DBOC or law
enforcement investigation of DBOC under the Marine Mammal
Protection Act.
There is no indication of negative impacts to fish species
of concern to NMFS, including ESA-listed salmonids and
their critical habitat.
There do not appear to be any significant impacts of DBOC
operations on Essential Fish Habitat in Drakes Estero
overall. We have no records to indicate that DBOC is
impacting eelgrass to the degree that the eelgrass is not
healthy or not providing adequate habitat values in the
estero.'' (Memo, pg 1)
This approach to the defining of, and comparing alternatives to
different baselines, is unusual. It is common practice in NEPA
documents to compare all alternatives to one baseline defined
as existing conditions. NMFS questions whether it is
appropriate to compare the impacts of one alternative to one
baseline, and then compare impacts of other alternatives to a
different baseline in the DEIS. NMFS recommends all the
alternatives be compared to the existing conditions baseline.
(Enclosure, pg 6)
Senator Feinstein Criticisms of Serial NPS Misconduct and NPS False
Science
Response to the National Academy of Sciences Report
Press Release and Letter from Senator Feinstein. ``Senator Feinstein
Urges Interior Department to Carefully Review New Scientific Report on
Oyster Farming in Drakes Estero.'' 5 May 2009. Link: http://
www.feinstein.senate.gov/public/index.cfm/press-releases?ID=16348dda-
5056-8059-7610-55b9d8709435
Citing the conclusions of a new report released today by the
National Academy of Sciences (NAS), U.S. Senator Dianne
Feinstein (D-Calif.) today said that she found it ``troubling
and unacceptable'' that the National Park Service had
exaggerated the negative effects of oyster farming on the
ecosystem of Drakes Estero in the Point Reyes National
Seashore.
Response to the National Academy of Sciences Report--II
Op-ed by Senator Feinstein: ``Why Oyster Farm Should Stay''--Marin
Independent Journal. 17 July 2009. Link: http://
www.feinstein.senate.gov/public/index.cfm/op-eds?ID=89376a5d-5056-8059-
7633-0d9e6660d61c
So, I asked independent scientists at the National Academy of
Sciences to evaluate the controversial park service report on
the estero. They concluded that the park service science was
shoddy, misleading, and in some cases, flat wrong.
Response to the Frost Report
Fimrite, Peter. ``Sen. Feinstein hits Drakes Bay oyster farm report.''
SF Gate. 23 March 2011.
``The National Park Service and the Department of the Interior
have once again failed to grasp the severity of recent
misconduct at Point Reyes National Seashore,'' Feinstein wrote
in a letter to Interior Secretary Ken Salazar and Peggy O'Dell,
the park service deputy director. The senator demanded
immediate steps to eliminate political agendas and instill in
employees ``a rigorous and objective pursuit of scientific
truth.''
``It is critical,'' she said, that the government ``publicly
disavow the practice of selectively misusing and misconstruing
science to achieve a desired outcome.''
Response to the Frost Report--II
Press Release, Senator Feinstein. ``Time to Rebuild Confidence in the
Park Service''--Marin Voice. 24 March 2011. Link: http://
www.feinstein.senate.gov/public/index.cfm/2011/3/45e612d3-5056-8059-
7659-9db56a8e6d50-post
Rather than accepting the Frost Report's verdict of misconduct
and taking decisive action, the Department of the Interior
responded defensively by noting the absence of ``criminal
violation,'' admitting that ``mistakes'' were made, and
declining to inform the public whether corrective action is
taken.
This response does nothing to rebuild confidence in the
objectivity of the National Park Service.
Three separate investigative reports have reached the same
conclusion:
The Frost Report details a ``collective but troubling
mindset'' (p. 32) of misusing science for advocacy
purposes. ``This misconduct arose from incomplete and
biased evaluation and from blurring the line between
exploration and advocacy through research.'' (p. 35)
The National Academy of Sciences found that the Park
Service ``selectively presented, over-interpreted, or
misrepresented the available science on the potential
impacts of the oyster mariculture operation.''
Likewise, the Office of the Inspector General concluded
that the Point Reyes science adviser ``misrepresented
research.''
Letter to California Fish and Game
Senator Feinstein letter to California Fish and Game on Drakes Bay
Oyster Co. 24 May 2012. Link: http://www.feinstein.senate.gov/public/
index.cfm/press-releases?ID=601fe5b6-41c2-4712-860c-ab0548b7373b
I became concerned about this issue when I found that the
science regarding the impacts of the oyster farm had been
manipulated, and that the oyster farm operator had been treated
in a biased and unfair manner. The Park Service has repeatedly
misrepresented the scientific record since 2006 to portray the
farm as environmentally harmful, and it is my belief that the
Park Service is doing everything it can to justify ending the
oyster farm's operations . . .
The Park Service's repeated misrepresentations of the
scientific record have damaged its trust with the local
community, and stained its reputation for even-handed treatment
of competing uses of public resources. I firmly believe the
only way to begin to repair that trust, and to send an
unmistakable signal that the Administration is committed to
scientific integrity, is to renew Drakes Bay Oyster Company's
permit.
Response to Interior Department Decision on Drakes Bay
Senator Feinstein Statement on Interior Department Decision on Drakes
Bay. 29 Nov 2012. Link: http://www.feinstein.senate.gov/public/
index.cfm/press-releases?ID=94865224-aa77-4842-8fbf-db4b52c2d9ef
The National Park Service's review process has been flawed from
the beginning with false and misleading science, which was also
used in the Environmental Impact Statement. The Secretary's
decision effectively puts this historic California oyster farm
out of business. As a result, the farm will be forced to cease
operations and 30 Californians will lose their jobs.
Senator Feinstein to DOI Secretary Salazar on NPS Falsification of
Science
Senator Dianne Feinstein letter to Interior Secretary Ken Salazar. 29
March 2012.
The Park Service's latest falsification of science at Point
Reyes National Seashore is the straw that breaks the camel's
back.
I am frankly stunned that after all the controversy over past
abuse of science on this issue, Park Service employees would
feel emboldened to once again fabricate the science in building
a case against the oyster farm. I can only attribute this
conduct to an unwavering bias against the oyster farm and
historic ranches.
The Park Service has falsified and misrepresented data, hidden
science and even promoted employees who knew about the
falsehoods, all in an effort to advance a predetermined outcome
against the oyster farm. Using 17-year-old data from New Jersey
jet skis as documentation of noise from oyster boat engines in
the estuary is incomprehensible. It is my belief that the case
against Drakes Bay Oyster Company is deceptive and potentially
fraudulent.
Question 3. Did any Federal agencies with relevant oversight weigh
in as to your oyster farm's stewardship at Drakes Estero during the
NEPA process?
Answer. See below--NOAA Nov. 17, 2011 Letter to Point Reyes
National Seashore with Comments
***
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
DBOC SUP EIS
c/o Superintendent
Cicely Muldoon
Point Reyes National Seashore
1 Bear Valley Road
Point Reyes Station, California 94956
Dear Ms. Muldoon:
NOAA's National Marine Fisheries Service (NMFS) appreciates the
opportunity to comment on the Draft Environmental Impact Statement
(DEIS) for Drakes Bay Oyster Company (DBOC) Special Use Permit (SUP),
September 2011, prepared by the National Park Service (NPS) and their
consultants.
NMFS reviewed the DEIS primarily from the perspective of the
impacts of the action alternatives on marine resources and ecosystems.
We also reviewed the adequacy of the methodology used in the analysis
and identified additional information NPS should consider as it
develops the final Environmental Impact Statement (FEIS). Our detailed
comments are provided in the attachment.
Based on a review of our records relating to the trust resources
for which NMFS has responsibilities under the Marine Mammal Protection
Act, the Endangered Species Act, and the Essential Fish Habitat
provisions of the Magnuson-Stevens Fishery Conservation and Management
Act:
Based on the evidence and information that has been made
available, the harbor seal population in Drakes Estero
appears stable and healthy. We have no documentation of any
recent disturbance of harbor seals by the aquaculture
operation. We have no records of violations by DBOC or law
enforcement investigations of DBOC under the Marine Mammal
Protection Act.
There is no indication of negative impacts to fish species
of concern to NMFS, including ESA-listed salmonids and
their critical habitat.
There do not appear to be any significant impacts of DBOC
operations on Essential Fish Habitat in Drakes Estero
overall. We have no records to indicate that DBOC is
impacting eelgrass to the degree that the eelgrass is not
healthy or not providing adequate habitat values to the
estero.
To improve the overall technical quality of the FEIS, we recommend
that NPS:
Modify the methodology so that all the alternatives are
compared to the existing conditions baseline (as described
in sections 1502.14,1502.15, and 1502.16 in the CEQ
regulations at https://ceq.hss.doe.gov/ceq_regulations/
regulations.html)
Add the National Aquaculture Act of 1980 as a relevant law
informing this DEIS
Expand the analysis to consider impacts on cultural
resources and visitor experience
Modify the analysis to take into account the ability of
ecosystems to recover from negative impacts
Provide a more balanced consideration of the ecosystem
services and the positive impacts of shellfish aquaculture
on habitat and water quality
Include additional citations from the scientific
literature.
In June 2011, NOAA adopted a new Marine Aquaculture Policy to
enable the development of sustainable marine aquaculture within the
context of NMFS multiple stewardship missions and broader social and
economic goals. Under this policy, NOAA is committed to protecting wild
species and ecosystems, and making timely and unbiased management
decisions based upon the best scientific information available. We are
committed to working with Federal partners to provide the depth of
resources and expertise needed to address the challenges facing
expansion of aquaculture in the United States. In keeping with the
policy of encouraging sustainable aquaculture while protecting wild
species and ecosystems, NMFS offers the attached comments on the Park
Service's DEIS.
Thank you for consideration of our comments and recommendations. If
you have any questions regarding our comments please contact Monica
DeAngelis, 562-980-3232, [email protected] or Diane Windham,
916-930-3619, [email protected].
Sincerely,
Rodney R. McInnis,
Regional Administrator.
Enclosure: National Marine Fisheries Service Comments on the Draft
Environmental Impact Statement for Drakes Bay Oyster Company Special
Use Permit--[This document has been submitted for the record and is
being retained in the Committee's official files]
Question 4. Mr. Huffman has objected to Mr. Grijalva's submission
to the record of an unsubstantiated letter alleging mistreatment of
workers at DBOC. Can you provide anything in support of Mr. Huffman's
objection to this letter?
Answer. See below--October 28, 2013--Amicus Brief to Ninth Circuit
from Jorge Mata and Isela Meza
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
FRAP RULE 29(c)(4) STATEMENT
This brief is filed pursuant to FRAP 29(a) and 29-2(a). All parties
have consented to its filing.
Jorge Mata has worked at the oyster farm with his family for 28
years. His wife Veronica has worked at the oyster farm for 24 years and
is currently in charge of the shellfish packing operation. His sister
Leticia has worked at the oyster farm for 29 years. His grown son Jorge
Mata Jr. and his daughter Ruby work part-time at the oyster farm. His
youngest child attends West Marin Elementary School in Point Reyes
Station, California. Over the many years he has worked at the oyster
farm, Mr. Mata has developed specialized skills and become very
experienced at growing oysters, setting oyster larvae and complying
with seafood safety rules. He is proud to work at the oyster farm where
his family is treated with respect, earns a living wage, are able to
live and work together and have developed personal relationships with
his coworkers and the Lunny family. Mr. Mata and his family stand to
lose their jobs, and their respective homes, if the oyster farm is
closed.
Isela Meza is Drakes Bay Oyster Company's staff marine biologist.
She received a degree in Marine Science, and was trained as an
Oceanologist at the University of Mexico, Baja graduating in 2008. Ms.
Meza has worked and lived at the oyster farm for five years. Her job
entails handling microscopic oyster larvae and ensuring that they
``set'' and begin to grow properly. Ms. Meza stands to lose her job if
the oyster farm is closed.
Counsel for Appellants initially assisted in the drafting of this
brief.
BRIEF OF JORGE MATA AND ISELA MEZA, AMICI CURIAE
Closing the oyster farm will hurt real working people and their
families. Approximately thirty-one skilled men and women worked full-
time--many for decades--at the oyster farm before the government made
its decision to deny a renewal of the farm's lease. Between fifteen and
twenty-five individuals, oyster farm workers and their families,
continue to work full-time or part-time at the oyster farm and/or live
in safe and affordable on-site housing. Collectively, the employees
have twelve children that attend the high quality schools of Marin
County. This community of workers will be lost if the oyster farm is
forced to close.\1\
---------------------------------------------------------------------------
\1\ The facts in this brief are drawn generally from the
declarations filed in the district court of amicus curiae Jorge Mata
(docket no. 81.1), educator James Patterson (docket no. 36), and
appellant Kevin Lunny (docket no. 38, paras. 69-74).
---------------------------------------------------------------------------
Oyster farming requires specialized skills and compliance with
numerous regulatory requirements. The process begins with staff trained
in marine biology nurturing microscopic oyster larvae to ensure that
they ``set'' and begin to grow properly. Once they do, workers then
gently place the baby oysters in mesh bags, or string them on special
tubes, and transport them by boat to the growing areas in Drakes
Estero. The process requires that oyster farm workers meticulously
follow regulatory protocols designed to avoid disturbing the seals and
other wildlife that are thriving in Drakes Estero. For the next several
years after they are placed in the growing areas, staff carefully tend
the oysters as they mature.
When the oysters are ready, staff brings them back to shore where
they are prepared for market. Oysters are sold, and often eaten, raw
and a consumer can get very sick from eating a bad oyster. To keep
consumers safe, staff diligently follows the strict sanitary
requirements imposed by the California Department of Public Health and
the U.S. Food and Drug Administration. Oysters destined for sale on the
half shell must be sorted and cleaned. Canned oysters have to be
washed, shucked and processed. It takes years for individual employees
to become proficient at their work.
Oyster farm life is a familial endeavor. Many workers live on the
same property as the place they work. Co-workers and the employer are
considered like family. Oyster farming is often a family affair with
men women and children over the age of 16 contribute to supporting the
family by working on the oyster farm. Husbands and wives, grandparents
and grown grandchildren often work together at the oyster farm. All of
the workers reside in the rural areas within a short distance from the
oyster farm. They volunteer in the community and participate in the
lives of their children at the excellent local schools. The oyster farm
community and the region in which they live is their home and perhaps
the only home they have known.
If the farm is closed, it is extremely unlikely that the employees
will be able to find other jobs in the area where they can put their
specialized skills to work. If the workers lose their jobs, they will
likely have to pull their children out of the local schools and take
lower paying jobs perhaps far away from the community they call home.
Closing the farm will be devastating to these workers and their
families.
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with Fed. R. App. Proc. 32(c)
and does not exceed 15 pages.
CERTIFICATE OF SERVICE
I certify that I electronically flied the foregoing with the Clerk
of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system on October 28, 2013.
I certify that all participants in this case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF
system.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
_________
United States Senate,
Washington, DC,
March 29, 2012.
Hon. Ken Salazar,
U.S. Department of the Interior,
1849 C Street, N.W.,
Washington, DC 20240.
Dear Secretary Salazar:
The Park Service's latest falsification of science at Point Reyes
National Seashore is the straw that breaks the camel's back.
The Park Service presented charts of noise measurements in its
draft environmental impact statement (DEIS) that appear to irrefutably
establish that oyster boats at Drakes Bay disturb the pastoral quiet of
the nearby wilderness. Here is the problem: the noise did not come from
oyster boats, nor did it come from anywhere near Drakes Estero or Point
Reyes National Seashore. Amazingly, the decibel recordings the Park
Service attributed to Drakes Bay oyster boats came from jet skis in New
Jersey 17 years ago.
I am frankly stunned that after all the controversy over past abuse
of science on this issue, Park Service employees would feel emboldened
to once again fabricate the science in building a case against the
oyster farm. I can only attribute this conduct to an unwavering bias
against the oyster farm and historic ranches.
My attention was drawn to the Seashore when I fought to extend
local ranching leases from 5 years to 10 so there would be sufficient
investment and time for the farmers and ranchers to not only operate
viable businesses, but to perform environmental improvements. Despite
efforts to comply, the ranches and oyster farm have been subject to
repeated mistreatment that is unbecoming of your Department.
The Park Service has falsified and misrepresented data, hidden
science and even promoted employees who knew about the falsehoods, all
in an effort to advance a predetermined outcome against the oyster
farm. Using 17-year-old data from New Jersey jet skis as documentation
of noise from oyster boat engines in the estuary is incomprehensible.
It is my belief that the case against Drakes Bay Oyster Company is
deceptive and potentially fraudulent.
The Park Service's conduct is a serious breach of trust with the
farming and ranching community at Point Reyes National Seashore. The
ranchers are concerned that if Drakes Bay Oyster Company's permit is
not renewed, they will be next. I share that concern.
I firmly believe that renewal of the permit is the only way for the
Park Service to send an unmistakable signal that the Administration's
commitment to scientific integrity is real and that repeated
misrepresentations of the scientific record to advance employees'
personal agendas will not be tolerated. I also believe that renewal of
the permit is the only way for the Park Service to begin to repair the
trust of the Seashore's ranching and farming community.
I look to you to bring resolution to this very serious matter.
Sincerely,
Dianne Feinstein,
United States Senator.
______
Arctic Slope Regional Corporation,
Anchorage, Alaska,
April 28, 2015.
Hon. Louie Gohmert, Chairman,
House Subcommittee on Oversight and Investigations,
1334 Longworth House Office Building,
Washington, DC 20515.
Re: Oversight Hearing on ``Zero Accountability: The Consequences of
Politically Driven Science''
Dear Chairman Gohmert:
On behalf of Arctic Slope Regional Corporation (``ASRC''), I am
pleased to submit comments on the subject of the Subcommittee's
oversight hearing titled ``Zero Accountability: The Consequences of
Politically Driven Science.''
ASRC is an Alaska Native Corporation, representing the Inupiat
people of the North Slope region of Alaska. We were created at the
direction of Congress under the terms of the Alaska Native Claims
Settlement Act of 1971 (``ANCSA''). ANCSA was designed to settle the
aboriginal claims of Alaska Natives and authorized the transfer of
roughly 45 million acres of land to Alaska Natives. This landmark
legislation extinguished Alaska Native aboriginal land rights, and
authorized and directed us to adopt a western corporate model to manage
Native lands and natural resources for the benefit of our shareholders.
Through ANCSA, Congress authorized ASRC to use the North Slope's
natural resources to benefit the Inupiat people both financially and
culturally. Consistent with this unique legislation, ASRC is a for-
profit business committed both to providing sound returns to its
shareholders and to preserving Inupiat culture and traditions. ASRC
owns nearly 5 million acres of land on Alaska's North Slope, much of
which has potential for oil, gas and other natural resource
development.
The responsible development of natural resources and maintenance of
our Inupiat traditions is challenging. On the North Slope, we are
challenged by the climate, by the cost of energy, by the lack of
transportation infrastructure and distance to markets, and by the
regulatory environment in which we work.
ASRC acknowledges our longstanding relationship with some of the
Federal agencies and the many hardworking public servants.
Unfortunately, we have had numerous experiences in which Federal
agencies imposed poorly conceived and paternalistic rules on our people
and our land. We rarely know with certainty that the science behind bad
decision-making is ``politically driven,'' but, as explained below, we
recognize insufficient science and inadequate support for Federal
decision making.
ESA Species Listings and Critical Habitat Designations
Our Inupiat shareholders continue to rely upon the wildlife species
of the North Slope for subsistence purposes, as we have done for
thousands of years. Alaska Natives have been the Arctic's primary
conservation stewards, carefully balancing subsistence needs and
cultural traditions with a profound respect for the wildlife that
shares our natural environment. Based upon this relationship, our
people have developed a deep and substantial understanding of the
biological and physical processes affecting our subsistence species and
the habitat that they rely upon.
In recent years, under the Endangered Species Act (``ESA''), the
U.S. Fish and Wildlife Service (``USFWS'') and National Marine
Fisheries Service (``NMFS'') have listed and designated critical
habitat for the polar bear, listed the bearded seal, and listed and
proposed critical habitat for the ringed seal. These actions have been
undertaken based upon estimated projections of the impacts of climate
change, a phenomenon that has not been caused by Alaska Natives.
Although we objected to these actions, and pointed out flaws in the
underlying science, the Federal Government did not heed our comments.
Instead, the polar bear was listed under the ESA based upon modeling
projections of sea ice by mid-century, and the bearded and ringed seal
were listed based upon further projections out to the end of the 21st
century. Similarly, USFWS designated critical habitat for the polar
bear and NMFS has proposed critical habitat for the ringed seal based
upon broad generalizations of essential habitat features without the
requisite scientific data demonstrating where this habitat may be
located with any specificity or certainty. Instead of fulfilling its
obligation to utilize the best available science, the Federal
Government has shifted the burden to our people and our affected
communities to demonstrate that these actions have been in error.
In order to protect our way of life and subsistence culture, we
have been forced to file lawsuits challenging each of these ESA
actions. Fortunately, in several instances, our resort to litigation
has been successful. Notably, in 2013, the U.S. District Court for
Alaska vacated USFWS's designation of critical habitat for the polar
bear.\1\ Likewise, in 2014, the Court also vacated NMFS's listing of
the Beringia distinct population segment of bearded seal.\2\ In both of
these decisions, the court found that the underlying scientific data
did not support the Services' conclusions. We are now in the process of
challenging NMFS's decision to list the Arctic subspecies of ringed
seal as a threatened species under the ESA.
---------------------------------------------------------------------------
\1\ Alaska Oil and Gas Ass'n v. Salazar, 916 F.Supp.2d 974 (D. Ak.
2013).
\2\ Alaska Oil and Gas Ass'n v. Pritzker, 2014 WL 3726121 (D. Ak.,
July 25, 2014).
---------------------------------------------------------------------------
Unfortunately, we are becoming accustomed to using litigation as a
tool to protect our people. The expense, time, and burden of pursuing
this approach can and should be avoided. The Federal Government must
fulfill its responsibility to make ESA decisions based upon the best
scientific data available, and traditional knowledge and information
gathered and maintained by our people and communities must be included.
The ESA requires USFWS and NMFS to take certain actions based upon
the best available science, including decisions to list species,
designate critical habitat, and conduct consultation on federal actions
that may affect listed species or critical habitat.\3\ However, the ESA
does not currently include a statutory definition of what constitutes
best available science, giving Federal agencies discretion to determine
which data are appropriate. While there is general recognition that
traditional knowledge should be considered in ESA decision-making, it
is typically not relied upon or incorporated as fully as other sources
of data. This current practice is flawed. Too often traditional
knowledge is sought at the end of the listing or habitat designation
process, after the Services have already made their decision. Instead,
ASRC believes that traditional knowledge is an integral component of
the best scientific data available and, as a critical source of
information, must be considered early and throughout the ESA
deliberation process, and not merely relegated to an afterthought in
the Services' decision-making.
---------------------------------------------------------------------------
\3\ E.g., 16 U.S.C. Sec. Sec. 1533(b)(1)(A) (listing species based
on ``best scientific and commercial data available''); 1533(b)(2)
(designation of critical habitat based on ``best scientific data
available''); 1536(a)(2) (consultation shall use ``best scientific and
commercial data available'').
---------------------------------------------------------------------------
USFWS's recent exercise in considering whether to list the yellow-
billed loon is an example that highlights the need to incorporate
traditional knowledge and information at the start of the ESA
deliberation process instead of at the end. ASRC believes that had
traditional knowledge been sought and incorporated into the best
scientific data available when considering whether to list the species,
the Federal Government would have arrived at its conclusion not to list
the loon much sooner. Further frustrating matters, ASRC had to invoke
consultation privileges pursuant to Executive Order 13175 and
Secretarial Order 3317, to garner the attention of the Federal
Government.
Our experiences lead us to believe that the Federal Government
continues to rely upon unsupported assumptions and overbroad
interpretations of limited data in efforts to use the ESA to address
and mitigate the effects of climate change. This policy-driven approach
contravenes the intent of Congress in enacting the ESA, and
disproportionately harms the cultural and economic well-being of the
Inupiat people.
WOTUS Proposed Rule
On April 6, 2015, ASRC testified before the Senate Committee on
Environment and Public Works Subcommittee on Fisheries, Water, and
Wildlife on the Environmental Protection Agency (``EPA'') and U.S. Army
Corps of Engineers (``Corps'') proposed rule (the ``Proposed Rule'')
defining the scope of waters protected under the Clean Water Act
(``CWA''),\4\ a hearing chaired by Senator Dan Sullivan.
---------------------------------------------------------------------------
\4\ Definition of ``Waters of the United States'' under the Clean
Water Act, 79 Fed. Reg. 22,188 (Apr. 21, 2014).
---------------------------------------------------------------------------
As explained in our testimony, and in comments submitted to EPA and
the Corps on the Proposed Rule, Alaska has more wetlands than all of
the other 49 states combined. According to a 1994 USFWS report,
wetlands cover 43.3 percent of Alaska. In the Lower 48 states, wetlands
only occupy 5.2 percent of the surface area. While USFWS used an
expansive definition of ``wetlands'' in its study, that definition is
very similar to the jurisdictional waters categories added to the
definition of ``waters of the United States'' by the EPA and Corps in
their Proposed Rule. Thus, on the North Slope of Alaska, more than 80
percent of the region could be deemed ``waters of the United States''
by the Proposed Rule without application of the ``significant nexus''
test or any other individualized inquiry.
Unlike the many exceptions proposed for agricultural and other
uses, the Proposed Rule creates no exceptions for any material portion
of the wetlands in Alaska. Yet Alaskan waters and wetlands are unusual
in many respects that, in many cases, make them unsuitable for this
broad assertion of jurisdiction by the Federal Government. Many of
Alaska's wetlands are frozen for nine months out of the year, and their
hydrologic functions are different from those in other parts of the
country. For example, unlike wetlands in temperate zones, Arctic
wetlands, lying above of thousands of feet of frozen permafrost, are
not connected to aquifers subject to water flow. Thus, while there may
be saturated soils that support hybrid vegetation, there is limited or
no wetland connectivity to navigable waters. Yet the Proposed Rule
fails to consider any of these unique aspects of Alaskan wetlands.
Economic development in America's Arctic is already challenging,
and those challenges will grow alarmingly if our Federal Government can
simply deem 80 percent of the entire North Slope region to be ``waters
of the United States'' without considering the requisite scientific
information. Whether politically driven or simply poorly conceived, the
Proposed Rule threatens to have enormous impacts on our ability to
build our communities and develop our natural resources. It threatens
our ability to use those very lands that we received in exchange for
our surrender of our aboriginal claims.
The Threat to End the Bowhead Hunt
The fight of the Inupiat Eskimo people to preserve our subsistence
way of life has been a foundational and often negative experience for
our people. Our struggle to maintain our traditional way of life is
exemplified by the effort to preserve our seasonal bowhead whale hunt,
a tradition we have carried on for thousands of years. The entire
community participates and shares in the hunt, ensuring that the
traditions and skills of the past will be carried on by future
generations. Each whale provides thousands of pounds of meat and
maktak, which is shared by all the people in our communities.
To preserve our traditional bowhead hunt we have had to fight
science with science for nearly forty years. I want to emphasize that
the Federal Government is now a partner in this fight to preserve our
cultural hunt--but this was not always so.
In the late 19th and early 20th centuries, Yankee and British
whaling operations substantially reduced the size of our regional
Bering Sea stock of bowhead whales. In the early 1970s, as opposition
to commercial whaling operations started to grow, some countries raised
concerns about the status of the regional bowhead population and our
subsistence harvest of this stock. We were not made aware of this
international interest until 1977, when the International Whaling
Commission (``IWC'') imposed a ban on the subsistence harvest of
bowhead whales by Alaska Eskimos. The ban was based upon a Federal
Government report that erroneously estimated that only 600 to 2,000
bowhead whales existed in the Bering Sea stock. Had our Inupiat hunters
been consulted, the IWC would have been informed (correctly) that there
were at least 4,000 bowhead whales in the population.
In response to the ban, our Inupiat whale hunters established the
Alaska Eskimo Whaling Commission (``AEWC''), which undertook the
difficult task of convincing the Federal Government that our Inupiat
elders knew more about the bowhead whale population than Western
scientists. The North Slope Borough, our county-level government, also
established its own Department of Wildlife Management, which has now
spent decades uniting Western science with Native traditional knowledge
to better understand the bowhead whale. Traditional knowledge and local
science have prevailed, but not before our tiny communities were forced
to make enormous investments of resources (time, energy, and money) to
preserve our traditional way of life.
We have had similar experiences with migratory birds, polar bears,
and other marine mammals. Our communities are rife with stories of
Federal law enforcement officers harassing our elders and intimidating
our young people. We, as Inupiat people living in the United States,
have had to create our own organizations, hire our own scientists,
expend our own limited resources, and argue our case for forty years
just to preserve a way of life that we have maintained for thousands of
years.
Conclusion
This letter highlights just three examples of costly challenges we
have faced as a people due to the failure of Federal agencies to
support decision-making with sufficient scientific data. Unfortunately,
we have become accustomed to fighting these decisions to prevent any
disproportionate and harmful impacts on our people. The expense, time,
and burden of protecting our traditional way of life and building our
communities would not fall so heavily on our shoulders if the Federal
Government fulfilled its responsibility to make decisions based upon
the best scientific data available, including information and
traditional knowledge gathered and maintained by our people and
communities.
ASRC has been working with Congressman Don Young to determine how
best to tackle some of the challenges we discuss in this letter. We
hope the Subcommittee will be able to work with our Congressman on this
effort as well.
We appreciate this opportunity to share our views with the
Subcommittee.
Sincerely,
Rex A. Rock, Sr.,
President & CEO.
______
East Coast Shellfish Growers Association,
Toms River, New Jersey,
April 25, 2015.
Hon. Rob Bishop, Chairman,
Committee on Natural Resources
Hon. Louis Gohmert, Chairman,
Subcommittee on Oversight and Investigations
1324 Longworth House Office Building,
Washington, DC 20515.
Honorable Congressmen:
I am writing to comment on the upcoming April 29th hearing
concerning the ``Consequences of Politically Driven Science.'' As a
scientist I find the consequences of agenda-driven science offensive
and pernicious. I find it even more egregious when such science is
financed by public dollars and advanced by federal agencies. The
specifics of the National Park Service investigations and reports
pertaining to the Drakes Bay Oyster Farm in Drakes Estero on California
are but one example of how biased, agenda-driven science can destroy
jobs and propagate false information to achieve a pre-determined
outcome.
My association represents 1,300 small shellfish farms from Maine to
Florida. These proud stewards of the environment harvest over $155
million worth of local, sustainable and nutritious oysters and clams
while employing thousands in rural coastal areas. These hard-working
farmers have had their reputations tarnished by National Park Service
allegations of West Coast impacts that were untrue and misrepresented.
There are numerous examples where the Park Service used
questionable practices, poor scientific protocols, and deceptive data
in an attempt to make their case that the Oyster Farm in Drakes Estero
created negative environmental impacts, when in fact the opposite was
true. Oyster farms provide documented ecosystem services and improve
water quality while providing habitat for fish and many other
organisms.
Scientists and industry experts provided hundreds of pages of
comments to refute each claim of harm alleged in the Draft EIS that the
NPS published in their efforts to eradicate the Drakes Bay Oyster Lease
after decades of operation. These comments effectively refuted each of
the claims of impact alleged in the NPS DEIS, yet (in an apparent
violation of NEPA) the NPS ignored these comments when the final EIS
was produced. The claims of impacts raised in these documents are
damaging an industry that has received kudos for environmental
stewardship from numerous environmental groups and government agencies.
New applicants for leases to conduct shellfish farms are now asked
to prove a negative--to demonstrate that their proposed farming
activities will not result in some of the impacts described in these
unfounded and misleading federal publications. Here are just a few
examples:
The NPS misrepresented sound data from Jet Skis and
jackhammers to make the case that the farm was noisy and
offended park goers. Had they used a meter to measure
actual farm sound levels they would have been hard pressed
to find an issue.
The NPS cherry-picked seal abundance data in an attempt to
prove an impact to seal breeding in the Estero, and they
withheld two years of photographic records that would have
exonerated the farm from these charges. The National
Research Council and the Marine Mammal Commission have both
published documents refuting the NPS allegations of harm.
Further NPS allegations of introduced exotic species,
eelgrass damage, sediment accumulation and flow alterations
were also shown to be false and misleading. Comments on the
DEIS refuting the NPS allegations of impacts were ignored
in the final EIS.
Other examples of agenda-driven science have led to listing species
as endangered or threatened. When a species is listed it often forces
those who interact with it to make drastic and expensive modifications
to culture practices. In some cases farmers are forced to cease or move
entire operations. In many cases, permits are delayed or denied because
of perceived or feared impacts. It is important that decisions with
such significant implications are driven by accurate and unbiased
science.
It is NOAA's stated policy that shellfish aquaculture in the U.S.
should be expanded to create jobs, improve coastal water quality,
provide domestic seafood and lessen our dependence on imported seafood
that currently comprises 91% of consumption, adding $11.7 trillion to
our trade deficit. NOAA submitted comments in response to the NPS DEIS
on Drakes Estero suggesting that the impacts were insignificant and
unsupported by scientific evidence. The reckless and misleading NPS
publications relating to the Drakes Bay Oyster Farm will make it more
difficult for growers to obtain permits and respond to permitting
agency concerns.
Our Association would like to see Congress statutorily mandate that
the entire body of science prepared at Point Reyes National Seashore by
the NPS staff (or developed by contract) be retracted--for cause, bias
and misconduct.
Thank you.
Sincerely,
Robert B. Rheault, Ph.D.,
Executive Director.
______
Pacific Coast Shellfish Growers Association,
Olympia, Washington,
April 27, 2015.
Hon. Louie Gohmert, Chairman,
House Subcommittee on Oversight and Investigations,
Committee on Natural Resources,
1324 Longworth House Office Building,
Washington, DC 20515.
Re: Hearing on Zero Accountability: The Consequences of Politically
Driven Science
Dear Chairman Gohmert and Subcommittee Members:
This letter is submitted on behalf of the Pacific Coast Shellfish
Growers Association (``PCSGA'') regarding the Subcommittee's upcoming
hearing concerning the consequences of politically driven science,
particularly as it relates to science employed by the National Parks
Service (``NPS'') in its review of the potential environmental impacts
associated with renewal of Drakes Bay Oyster Company's (``DBOC'') lease
of its shellfish farm in Drakes Estero, California. PCSGA appreciates
the Subcommittee's review of this issue and opportunity to comment on
an issue of great concern to the shellfish industry as a whole.
PCSGA, founded in 1930, represents over 120 private and tribal
shellfish growers in California, Oregon, Washington, Alaska and Hawaii.
PCSGA's members grow a wide variety of healthful, sustainable shellfish
including oysters, clams, mussels and geoduck. The majority of our
members represent multiple generations of shellfish farming. Shellfish
have played an important role in several Pacific Coast coastal
communities for nearly a century and support family wage jobs, are a
critical component to healthy marine ecosystems and provide a healthy,
high quality, sustainably produced protein source. PCSGA works on
behalf of its members on a broad spectrum of issues, including
environmental protection, shellfish safety, regulations, technology and
marketing.
PCSGA has expressed serious concerns over the Drakes Bay Oyster
Company Special Use Permit Draft and Final Environmental Impacts
Statements and associated studies referenced therein (collectively, the
``EIS''), prepared by Point Reyes National Seashore (``PRNS'') as the
lead agency for the project pursuant to the National Environmental
Policy Act (``NEPA''). PCSGA does not believe that the EIS provided an
unbiased analysis that would have helped to inform the public and
decisionmakers regarding potential environmental impacts. PCSGA
submitted a comment letter on December 9, 2011, including comments from
its consultant Confluence Environmental Company, which criticized a
number of statements made in the Draft EIS, including (1) a flawed
description and characterization of the alternatives available; (2) a
consistent exaggeration of negative impacts and understatement or
ignorance of potential positive impacts; and (3) a failure to recognize
or discuss a significant amount of available published science on the
interactions between shellfish and the surrounding environment. A copy
of these comments is included as Exhibit A.
PCSGA's concerns were reiterated by the National Academy of
Sciences (``NAS''), which twice submitted significant criticisms of
NPS' analysis of potential impacts. The majority of these concerns were
not addressed in the Final EIS prepared by PRNS.
Given the failure of NPS to adequately respond to concerns raised
by NAS, PCSGA, and others in the Final EIS, PCSGA submitted a Complaint
about Information Quality on May 30, 2013 (the ``Complaint''). The
Complaint noted that the flawed environmental analysis in the EIS
regarding alleged adverse environmental impacts associated with
shellfish aquaculture potentially created a significant precedent that
could be used by other state or federal agencies or project opponents
seeking to deny shellfish farm permits. A copy of the Complaint is
attached as Exhibit B.
PCSGA received a response to the Complaint from the NPS on August
1, 2013. A copy of the NPS response is attached as Exhibit C. The
letter notes that the Compliant is moot, given that the EIS did not
``provide the central basis for the [DOI's] decision'' not to renew the
DBOC lease and that DOI's decision was not based ``on the data that was
asserted to be flawed.'' \1\ NPS asserted that the ``information
challenged in your compliant has not been used and will not be used in
a decision-making process . . .'' and that ``no further dissemination
of the information is expected . . .'' \2\ Despite the acknowledgement
that DOI did not rely on the EIS to make its determination, and tacit
agreement that the EIS analysis was fundamentally flawed, NPS has not
withdrawn the EIS from public consideration and maintains it on its
website.\3\
---------------------------------------------------------------------------
\1\ Letter from Christine S. Lehnertz to Robert M. Smith and
Margaret Pilaro Barrette, August 1, 2013, at 2.
\2\ Id.
\3\ http://www.nps.gov/pore/learn/management/planning_dboc_sup.htm.
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PCSGA appreciates the opportunity to comment on this important
topic concerning the use, or misuse, of scientific analysis when
considering impacts associated with shellfish farms. The evaluation of
potential environmental impacts associated with shellfish farms is a
crucial component for both project applicants and regulatory agencies
to ensure that shellfish operations can continue to sustainably coexist
with their surrounding environment, as they have successfully done for
decades on the West Coast. An objective, complete, and unbiased
analysis of a farm's effects on the surrounding environment is critical
to inform the public and regulatory decisionmakers. The DBOC EIS is
inconsistent with a reasonable and objective evaluation of potential
impacts.
Sincerely,
Margaret Pilaro Barrette,
Executive Director.
Exhibits A-C were submitted as attachments; due to size constraints,
these documents are being retained in the Committee's official files.
______
John R. Hulls,
Point Reyes, California,
April 27, 2015.
Hon. Louie Gohmert, Chairman,
House Subcommittee on Oversight and Investigations,
1324 Longworth House Office Building,
Washington, DC 20515.
Dear Chairman Gohmert and members of the Subcommittee on Oversight
and Investigations:
For more than 30 years, Point Reyes has been my home and during
those years, I had a front-row seat to witness the Department of
Interior and National Park Service's blatant abuse of science, law,
policy and procedure. This serial scientific misconduct, taking place
over several years, severely damaged the community, both socially and
economically, and resulted in the National Park Service's closure of
the second largest employer in the area, Drakes Bay Oyster Company
(DBOC), located in Drake's Estero.
As an independent consultant, I served as project scientific
coordinator on coastal ecology research and management projects,
including a multi-year study for California's State Water Resources
Control Board examining the microbial ecology of the coast from San
Francisco to Bodega Bay. Based on my familiarity with the science and
ecology, I have also written extensively on oyster farm issues for
local papers.
My coverage of the story dates back to 2007, the very beginning of
the controversy, when Point Reyes Seashore Superintendent, Don
Neubacher, attempted to shut down the oyster farm, based on alleged
criminal harm being caused by Kevin Lunny, operator of DBOC.
A subsequent Inspector General's (IG) investigation determined that
the so-called data on which the NPS Superintendent made his charges was
completely non-existent at the time he made the charges. DOI science
and ethics have not gotten any better since. The long history of the
oyster farm fight at Drakes Estero has been documented by others, so I
will focus on a major issue where NPS behavior can be traced from the
initial misconduct and distortion of issues.
In the process, certain NPS officials and consultants were willing
to distort or misrepresent the scientific or financial record to
support a predetermined NPS agenda. In the process, data was
manipulated, reports were distorted and false information was publicly
disseminated.
In the end, accountability collapsed when an inadequate DOI IG
investigations failed to disclose that NPS' falsely cited data directly
implicated NPS scientists in the manufacturing of misleading science.
Accountability at NPS? There is none.
Over the years, I have authored dozens of columns and articles.
Here, I submit four articles for the Committee's consideration and
review in this hearing:
``Drake's Estero Inspector General Report, Investigating
the Investigators,'' March 2, 2013, Russian River Times.
``The Gang That Couldn't Map Straight,'' November 16,
2011, Russian River Times.
``Statistics, Damnable Statistics and Lies,'' November 20,
2008, Point Reyes Light.
``Environmental Justice in West Marin? '' December 19,
2012, Russian River Times.
The record is clear and overwhelming: NPS is willing to manufacture
science and distort policy to achieve a pre-determined position. In the
Drakes Estero Inspector General's Report, Investigating the
Investigators, NPS statements are simply taken at face value, despite
glaring inconsistencies and outright misstatements. In The Gang that
Couldn't Map Straight, NPS simply redraw maps to create a new
hypothesis of harm. In Statistics, Damnable Statistics and Lies they
completely distort a major segment of the West Marin economy in a study
required by NPS policy, simply eliminating the oyster farm (West
Marin's second largest employer) and they then ignore a Data Quality
Act filing by Point Reyes Light seeking to correct the NPS report.
Environmental Justice in West Marin? shows NPS and Interior riding
roughshod over executive orders and National Environmental Protection
Act requirements.
Highlights of each article are found below. Web links to these and
other articles, with expandable images, may be found at: https://
russianrivertimes.wordpress.com/category/oyster-farm/. Finally, I look
at a few very specific issues raised by the various articles.
The origin of the word science comes down from the Latin scientia,
or knowledge, so it's important not to be blinded by NPS `science' but
to look at what we know.
In the first Inspecting the Inspector article, we know that someone
at NPS elected to import data of the sound of a souped-up 2 stroke jet
ski as opposed to a small 4 stroke modern outboard on the oyster boats,
then failed to measure the actual source of the sound as required by
NPS standards? Who made this decision, which violated mandatory NPS
policy, and how did NPS supposedly expert consultants, who had actually
visited the oyster farm fail to note the obvious discrepancies? Who is
responsible?
In the Gang that Couldn't Map Straight, who at NPS directed the
staff time and supposed research for drawing of a map in direct
conflict with earlier maps prepared by NPS but the federal and state
agencies directly responsible for the management of estero and marine
mammals? Likewise, was it NPS or the NPS consultant who caused the
oyster farm to be eliminated from the socio-economic study, and who
made the decision not to follow the NEPA guidelines and the NPS policy
on outreach regarding the impact on the oyster worker community?
All of these and the many other questions raised do not require
hard-core science or complicated statistics or convoluted
interpretations of policy, but rather, a common-sense approach to facts
and behavior that in many ways identical not only to science, but good
journalism and indeed to well-run committee hearings, where at the end
of the day, the old questions of ``Who? What? When? Where? How? '' are
answered in such a way that we can all move forward. Our West Marin
community needs the committee's help not only to restore honesty and
integrity and achieve accountability, but to protect us from the
ongoing arrogance of an NPS that feels it is above the law, science and
policy.
Respectfully,
John R. Hulls
****
Drake's Estero IG Report: Investigating the Investigators
Posted on March 2, 2013 by russianrivertimes
Highlighted Text
``. . . the [Russian River] Times is left with two options to
explain the IG's failure to uncover any of the damning evidence found
by the Times. Either (1) the IG investigation is incompetent, and they
merely took the NPS responses on their face with no proper
investigation, or (2) the final IG report simply omits information that
would be damaging to the NPS and the Department of the Interior, and
that Interim IG Mary Kendall, as the committee implies, has essentially
abandoned her watchdog responsibility.''
``. . . the IG report will stand as just another in a long line of
NPS and DOI investigations of themselves, costing the taxpayers
literally millions of dollars, that are nothing more than whitewash and
cover-up.''
****
The Gang that Couldn't Map Straight
Posted on November 16, 2011 by russianrivertimes
Highlighted Text
There are real consequences to NPS presenting biased and
unsubstantiated information to the public. An Oct 2009 Russian River
Times article on coastal sustainability quoted a 2008 NOAA presentation
by Dr. Stonich, who characterized the behavior of different
environmental groups, saying some groups work with regulatory agencies
to preserve both the environment and sustainable mariculture, while
others (citing an anti-mariculture group in Puget Sound) support ``. .
. strategies of mobilization and confrontation rather than sitting down
with diverse stakeholders to reach consensus . . . support bringing
suit against shellfish firms'' . . . and ``view sitting down at the
table with adversaries as co-option.'' NPS' politically motivated
policy positions on Drake's Estero, dressed up as science, feed into
the negative behavior, divide communities and threaten the
sustainability of our coastal towns.
So, who pays?
We do. Investigations by the Department of Interior Inspector
General, the National Academy of Sciences, the Frost report, and a
forthcoming report from the Marine Mammal Commission represent an
expense to the taxpayers of millions of dollars, yet the NPS pattern
continues: after each report, a new set of claims of harm, and the
disclosure of previously undisclosed information. From all this time
and expense, the only thing that can be said for certain is that the
NPS cannot be trusted to reach a fair and impartial decision regarding
the fate of Drake's Estero.
****
POINT REYES LIGHT
OPINION: ARCHIVES
Statistics, Damnable Statistics and Lies
John Hulls--November 20, 2008
Web address: http://www.ptreyeslight.com/cgi/
opinion_archives.pl?record=59
Highlighted Text
Even more telling: the study never even mentions mariculture.
Though Drake's Bay Oyster Company is the second largest single employer
next to the Park Service itself; represents a major factor in
California mariculture; and is the State's last oyster cannery, it
doesn't even warrant mention. Yet cannery employment represents a major
secondary source of income for many ranch worker' families in the area
and is a valuable partner in West Marin's sustainable food production.
The Economic Impact Study, as it is now titled, is a prelude to the
upcoming presentation of the draft of the long-overdue General
Management Plan. Right now, it looks as though the Park Service is
preparing by cooking the books via statistics that say agriculture in
the park is not `important.' White deer with oyster stew on the menu,
again? To get ready to understand the draft Management plan when it is
released, West Marinites should read the park's socio-economic impact
study. Also try Darrell Huff's delightful little book, `How to Lie with
Statistics,' in print since 1954 and just as useful today.
****
Environmental Justice in West Marin?
Posted on December 19, 2012 by russianrivertimes
Highlighted Text
The November 29, 2012 Secretarial decision to reject a renewal
permit to the oyster farm is the last of a long series of NPS actions
that have converted Drakes Estero into a regulatory free-fire zone for
NPS, where neither law, regulation nor policy seem to apply. Under Jon
Jarvis, as Pacific West Regional Director and now, Director, NPS, and
Park Superintendent Don Neubacher, (now promoted to Yosemite) NPS
dealing with the communities of West Marin has been anything but
transparent, open and honest.
Despite repeated complaints from the community, overly aggressive
law enforcement by Park Rangers led to an initial 2003 incident where
an off-duty ranger hosed down passing motorcyclists on Highway 1,
leading to an altercation resulting in NPS losing a lawsuit brought by
the motorcyclists. This was then followed by a 2004 incident where the
same ranger and a fellow officer, off Seashore property, handcuffed two
teenagers and pepper sprayed them in the face and eyes. This eventually
resulted in a $50,000 settlement, but most damaging in the eyes of the
small West Marin communities was the fact that then-superintendent
Neubacher lied at a public meeting, claiming that he was asking the
Marin County DA to investigate the incident, when in fact he was asking
the DA to bring charges against the teenagers. The community was
justifiably incensed.
The Park Service actions are extensively documented by Pulitzer
Prize winning editor Dave Mitchell in the Point Reyes Light and on his
blog, Sparsely Sage and Timely. These two incidents were extensively
reported in the local press and seeded a great deal of community
distrust in the Park Service.
Secretary Salazar can't claim that he did not know about such
problems in the agency. Inspector General Devaney was asked by Congress
to address the ``institutional culture of managerial irresponsibility
and lack of accountability'' in the Interior Department. In his 2006
Congressional testimony, he described a major problem within DOI,
namely, ``intricate deviations from statutory, regulatory and policy
requirements to reach a predetermined end.'' This mirrors exactly the
rogue actions of NPS in the Drakes Estero case today, riding roughshod
over the rights of the oyster farmer, the oyster workers and the
community at large. It's time to send a strong message to Secretary
Salazar and NPS Director Jarvis: such behavior will not be tolerated,
and remove them from management of the estero and the pastoral zone,
and replace it with a separate park management body. If that's
unacceptable, then it's time for the White House and the President to
provide leadership at Interior and the NPS who will respect the law and
the citizens of West Marin.
______
Naomi Oreskes, Conspiracy Queen
By: Norman Rogers
June 7, 2011
http://www.americanthinker.com/articles/2011/06/
naomi_oreskes_conspiracy_ queen.html
Naomi Oreskes is the environmentalist Noam Chomsky. She thinks that
anyone who questions environmentalist doctrine is evil. Her crusade is
to expose the presumed ulterior motives of the critics. According to
Oreskes, if you question the dubious studies concerning secondhand
tobacco smoke, you must be in the pay of tobacco companies. If you
question global warming, you must be working for a fossil fuel company.
If you question the DDT ban, you must part of a right wing conspiracy
to weaken faith in government regulators.
Oreskes is the author of one of the silliest articles ever to appear in
the journal Science. She claimed that she analyzed 928 peer-reviewed
papers on global warming and 100% agreed with the Intergovernmental
Panel on Climate Change (IPCC) concerning global warming. If you go to
the website of the Nongovernmental International Panel on Climate
Change (NIPCC) you can find hundreds of peer reviewed papers that
disagree with the IPCC in one way or another.
Her latest book, with co-author Erik Conway, is Merchants of Doubt. In
this tedious book she treats us to the details of numerous disputes
between those who subscribe to normative environmental theology and
those who don't. Normative environmental theology is the sort of
theology that is preached by the Sierra Club or the Union of Concerned
Scientists. Oreskes is a professor and an important administrator at
the University of California. Like Chomsky, she cloaks her endless
conspiracy theories in the machinery of scholarship. Her 343 page book
has 64 pages of notes. A pig with lipstick is still a pig.
Neither Oreskes nor her co-author have strong scientific educations and
it shows. From her book it is obvious that she enjoyed access to many
scientists, but somehow none of her scientist friends found the time to
proof read Merchants of Doubt. This is not hard to understand.
Merchants of Doubt is a book of unsurpassed monotony. Conspiracy
theories get boring very quickly, especially when the conspiracies are
all variations of a few crude plots. A number of informed critiques of
Merchants of Doubt can be seen in the 1-star Amazon reviews.
In the introduction to Merchants of Doubt the fact that adding CO2 to
the atmosphere causes the stratosphere to cool and the troposphere to
warm is explained as follows:
But if the warming is caused by greenhouse gases emitted at the
surface and largely trapped in the lower atmosphere, then we
expect the troposphere to warm, but the stratosphere to cool.
It is a bit difficult to know what this sentence means but it is clear
that Oreskes hasn't the faintest idea concerning radiation and the role
of greenhouse gases. Greenhouse gases (mostly CO2) are not trapped in
the lower atmosphere but are well mixed up to and including the
stratosphere. CO2 causes the stratosphere to cool because CO2 is a good
radiator of infrared radiation and thus improves the capability to
exhaust stratospheric heat to space as radiation. Cooling of the
stratosphere is not evidence of global warming. It is evidence of
increased CO2 in the atmosphere. The distinction is important.
The climategate emails are hundreds of emails among important
scientists that show them to be perverting scientific protocols and
practicing propaganda to promote global warming alarmism. Ben Santer is
a prominent player in the climategate emails. He is most famous for
saying this about the global warming skeptic scientist Patrick
Michaels:
Next time I see Pat Michaels at a scientific meeting, I'll be
tempted to beat the crap out of him. Very tempted.
Oreskes, apparently before the release of the climategate emails, said
this about Ben Santer:
He's thoroughly moderate . . . soft-spoken, almost self-
effacing . . . you might think he was an accountant . . .
[i]
Ben Santer, who may be Oreskes' favorite scientist, has been struggling
for years with the skeptics concerning the relative heating of the
upper troposphere. He has resorted to publishing papers with as many of
24 co-authors, apparently in an attempt to make his arguments more
credible by collecting a lot of scientists willing to support him.
In Oreskes' milieu, it is apparently a bad thing to be anti-communist.
She attacks and psychoanalyzes the physicist Frederick Seitz for his
``strident'' and ``unalloyed'' anti-communism. She puts thoughts in
Seitz's head. He thinks his colleagues are ``ingrates'' and he ``has an
uneasy time with the masses.'' He was ``hawkish'' and ``superior.''
Another physicist, William Nierenberg, is also psychoanalyzed by
Oreskes. According to her Nierenberg ``hated environmentalists'' and
was ``overconfident.'' Nierenberg's son Nicholas Nierenberg has been so
upset by Oreskes' distortions of his father's work that he started a
website to refute Oreskes. The sin of these eminent physicists for
Oreskes is that they were critics of environmental extremism and strong
supporters of the United States in the cold war. Seitz and Nierenberg
are both dead and thus cannot defend themselves.
Fred Singer is a scientist who has been in the forefront of defending
science against junk science. This is not an easy road to take. Junk
science is a basic tool for groups that are pushing ideological
positions. Subtle distinctions are not welcomed by the ideological
groups. If you acknowledge that smoking cigarettes causes cancer, but
then you dare to say that the hazard presented by secondhand smoke is
exaggerated, you are tagged as a supporter of cancer. If you say that
the case for man-caused global warming is full of holes you are tagged
as an agent of fossil fuel companies. Very few scientists are brave
enough to take the heat and personal attacks the come from standing up
to junk science. Fred Singer has been doing it for a long time. In his
late 80s, he is still writing scientific papers and traveling the world
giving lectures. Oreskes is a promoter of junk science and for that
reason cannot abide Fred Singer. Singer is her favorite punching bag.
His name appears dozens of times in Merchants of Doubt.
Should we be surprised that Naomi Oreskes is a professor at the
University of California and has been promoted to an administrative
position? After all Noam Chomsky was a professor at MIT. But Chomsky
was a professor because of his work in linguistics, not because he
believes in crazy conspiracies. It seems that Naomi Oreskes is
successful not in spite of her love of conspiracy, but exactly because
she promotes conspiracies. This makes one wonder what has happened to
the intellectual climate at the University of California.
The science establishment has fallen so low that it thinks it is a
useful tactic to deal with its critics by accusing them of conspiracies
financed by tobacco companies and oil companies. For the last 50 years,
starting with DDT, we have been subjected to junk science scares. The
scares were invariably false or exaggerated. Most of these scares were
not more than brief media sensations, but some scares have been
disruptive, diverting attention from real problems. The king of all
scares is global warming. Taken seriously, it requires revamping the
entire world economy and making us all poorer. The predictions of
global warming disaster are deeply flawed junk science dressed up with
an impressive ``scientific'' structure of panels, committees and
organizations. The global warming scare is rapidly collapsing.
Scientists outside of the global warming bubble are pointing out the
flaws in the science and a coterie of well-informed bloggers is getting
out the message by bypassing the establishment media where critics'
voices are generally blocked. Nature is helping because the earth and
the oceans are failing to warm according to script.
That a conspiracist like Naomi Oreskes would be welcomed by the global
warming scientific establishment and invited to speak at the December
2010 American Geophysical Union meeting is a symptom of increasing
desperation. The global warming advocates have dug themselves into a
deep hole and they can't seem to stop digging. Ironically Oreskes spoke
at a meeting where Exxon Mobil was the biggest financial
contributor.[ii] Apparently it's not a conspiracy if Exxon
Mobil gives its money to the right people.
[i] MERCHANTS OF DOUBT PAGE 1.
[ii] EXXON MOBIL WAS A TITANIUM SPONSOR, THE HIGHEST
CATEGORY.
****
Norman Rogers is a Senior Policy Advisor at the Heartland Institute
and maintains a personal website.
______
Science and Smear Merchants
By: S. Fred Singer
June 21, 2011
http://www.americanthinker.com/2011/06/science_and_smear_merchants.html
Professor Naomi Oreskes, of the University of California in San Diego,
claims to be a science historian. One can readily demonstrate that she
is neither a credible scientist nor a credible historian; the best
evidence is right there in her recent book, ``Merchants of Doubt: How a
Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke
to Global Warming,'' coauthored with Eric Conway. Her science is
faulty; her historical procedures are thoroughly unprofessional. She
is, however, an accomplished polemicist, who has found time for world
lecture tours, promoting her book and her ideological views, while
being paid by the citizens of California. Her book tries to smear four
senior physicists--of whom I am the only surviving one. I view it as my
obligation to defend the reputations of my late colleagues and good
friends against her libelous charges.
Oreskes is well known from her 2004 article in Science that claimed a
complete scientific consensus about manmade global warming; it launched
her career as a polemicist. Her claim was based on examining the
abstracts of some 900 published papers. Unfortunately, she missed more
than 11,000 papers through an incorrect Internet search. She published
a discreet ``Correction''; yet she has never retracted her
ideologically based claim about `consensus.' Al Gore still quotes her
result, which has been contradicted by several, more competent studies
[by Peiser, Schulte, Bray and von Storch; Lemonick in SciAm, etc].
Turning first to her science, her book discusses acidification, as
measured by the pH coefficient. She states that a pH of 6.0 denotes
neutrality [page 67, MoD]. Let's be charitable and chalk this off to
sloppy proofreading.
Elsewhere in the book [page 29], she claims that beryllium is a ``heavy
metal'' and tries to back this up with references. I wonder if she
knows that the atomic weight of beryllium is only 9, compared to, say,
uranium, which is mostly 238. A comparison of these two numbers should
tell anyone which one is the heavy metal.
Her understanding of the Greenhouse Effect is plain comical; she posits
that CO2 is ``trapped'' in the troposphere--and that's why the
stratosphere is cooling. Equally wrong is her understanding of what
climate models are capable of; she actually believes that they can
predict forest fires in Russia, floods in Pakistan and China--nothing
but calamities everywhere--and tells climate scientists in a recent
lecture: If the predictions of climate models have come true, then why
don't people believe them? [see http://tinyurl.com/3wrvon2] Perhaps
because people are not gullible.
But the most amazing science blunder in her book is her hypothesis
about how cigarette smoking causes cancer [page 28]. She blames it on
oxygen-15, a radioactive isotope of the common oxygen-16. I wonder if
she knows that the half-life of O-15 is only 122 seconds. Of course,
she does not spell out how O-15 gets into cigarette smoke, whether it
is in the paper or in the tobacco itself. If the latter, does she
believe that the O-15 is created by the burning of tobacco? If so, this
would be a fantastic discovery, worthy of an alchemist. Perhaps someone
should make her aware of the difference between radio-active and
`reactive' oxygen; the two words do sound similar.
I am sure one would find more examples of scientific ignorance in a
careful reading of the rest of the book. But why bother?
Having demonstrated her scientific `expertise,' let's turn to her
historical expertise. Any careful historian would use primary sources
and would at least try to interview the scientists she proceeds to
smear. There is no trace of that in Oreskes' book. She has never taken
the trouble to interview Dr. Robert Jastrow, founder of the NASA-
Goddard Institute for Space Studies, and later Director of the Mt.
Wilson Astronomical Observatory and founding president of the renowned
George C Marshall Institute in Washington, DC. I can find no evidence
that she ever interviewed Dr. William Nierenberg, director of the
Scripps Institution of Oceanography, who actually lived in San Diego
and was readily accessible. And I doubt if she ever even met Dr.
Frederick Seitz, the main target of her venom.
Seitz was the most distinguished of the group of physicists that are
attacked in the book. He had served as President of the U.S. National
Academy of Sciences and of the American Physical Society, and later as
President of Rockefeller University. He had been awarded numerous
honorary degrees from universities here and abroad, as well as the
prestigious National Medal of Science from the White House.
Instead of seeking firsthand information--in the tradition of
historical research--Oreskes relies on secondary or tertiary sources,
quoting people who agree with her ideology. A good example of this is
her discussion of Acid Rain and of the White House panel (under Reagan,
in 1982) chaired by Bill Nierenberg, on which I also served. Here she
relies on what she was told by Dr. Gene Likens, whose research funding
depends on portraying acid rain as a very serious environmental
problem. It most definitely is not--and indeed, it disappeared from
view as soon as Congress passed legislation designed to reduce the
effect.
An amazing discovery: I found that Oreskes gives me credit (or blames
me) for inventing `cap-and-trade,' the trading of emission rights under
a fixed cap of total emissions [see pp. 91-93]. I had never claimed
such a priority because I honestly don't know if this idea had been
published anywhere. It seemed like the natural thing to suggest--in
order to reduce total cost, once an emission cap had been set. My
example involved smelters that emit SO2 copiously versus electric
utilities that burn coal containing some sulfur. I even constructed
what amounts to a `supply curve' in which the bulk of the emission
control is borne initially by the lowest-cost units.
Of course, Likens and some others on the panel, antagonistic to coal-
burning electric utilities, objected to having my discussion included
in the panel report. Nierenberg solved the problem neatly by putting my
contribution into a signed Appendix, thereby satisfying some panel
members who did not want be responsible for a proposal that might let
some electric utilities off the hook.
We have established so far that Oreskes is neither a scientist of any
sort nor a careful professional historian. She is, however, a ``pop-
psychologist.'' It seems she has figured out what motivates the four
senior physicists she libels in her book; it is ``anti-communism.''
Really! This is not only stated explicitly but she also identifies them
throughout as ``cold warriors.''
Well, now we know at least where Oreskes stands in the political
spectrum.
****
Atmospheric physicist S. Fred Singer pioneered upper-atmosphere
ozone measurements with rockets and later devised the satellite
instrument used to monitor ozone. He is Professor Emeritus of
Environmental Sciences at the University of Virginia and founding
director of the U.S. Weather Satellite Service (now NESDIS-NOAA). He is
a Fellow of the Heartland Institute and the Independent Institute.
A RESPONSE TO ``THE CLIMATE CHANGE DEBATES''
http://www.sciencemag.org/cgi/reprint/328/5983/1230-a.pdf
S. Fred Singer
``In questions of science, the authority of a thousand is not worth
the humble reasoning of a single individual.''
--Galileo Galilei
Philip Kitcher, a philosophy professor at Columbia University, has
written a book review, entitled ``The Climate Change Debates''
(Science, vol 328, 4 June, 2010, pp. 1230-34). His recipe for an ``open
discussion and debate'' about climate change seems to be a one-sided
coverage by an elitist, self-chosen group. ``Genuine democratic
participation'' is out, in favor of ``reliance on expert opinion.'' And
who might these `experts' be? No surprise there; Kitcher knows--and
shapes his review accordingly. Making his point, Kitcher then
juxtaposes ``aging'' scientists to ``serious'' scientists.
It's all downhill from there. To emphasize his recommendation to
deny a platform to ``deniers'' (his term), consider his choice of books
for review. All eight books are basically polemics for anthropogenic
global warming (AGW), with precious little science in them. Assuming a
rough balance of such books on both sides of the AGW debate, the
probability of such a choice by pure chance is about 0.39 percent. So
much for balance.
To make matters even worse, he plugs the very worst of the eight
books selected--Merchants of Doubt, written by science historians Naomi
Oreskes and Erik Conway.\1\ It attempts to smear mainly four
scientists, all physicists with long records of publications, public
service, and honors. In defense of three of these (recently deceased),
who were founders of the George C. Marshall Institute, the GMI has
published a reply to this attack on the integrity of the Institute and
its founders. The reply is available at http://www.marshall.org/pdf/
materials/894.pdf and is worth quoting from:
---------------------------------------------------------------------------
\1\ ``Merchants of Doubt: How a Handful of Scientists Obscured the
Truth on Issues from Tobacco Smoke to Global Warming'' by Naomi Oreskes
and Erik M. Conway, Bloomsbury Press, New York. 2010. 357 pp, According
to S. Fred Singer'' a shoddy and truly unprofessional book by two
academics who claim to be historians of science. True historians would
present an unbiased account of the available facts and carry out
sufficient due diligence to obtain such facts. In this case, we have
little more than a polemic that expresses the considerable prejudices
of the authors, particularly those of professor Naomi Oreskes.''
``Replete with half-truths and mischaracterizations, Naomi
Oreskes and Erik Conway's book besmirches the reputations of
three great American scientists to silence dissent within the
ranks of scientists and stifle debate among policymakers about
how to respond to global warming. Their message is both anti-
science and anti-democratic. Whether the goal of reducing
greenhouse gas emissions is desirable or not is irrelevant, the
merits of their scholarship and its implications are clear.
Predictably, they create a tobacco strawman and knock it down
to set the tone of a grand conspiracy to harm the public.
Specifically, the work overstates the linkage between Dr.
Seitz, a past president of the National Academy of Science--the
nation's most senior scientific establishment, and a past
president of a leading biomedical institution, the Rockefeller
University in New York City, and R.J. Reynolds. Yes, Seitz
helped establish an advisory committee to direct a research and
development program upon his retirement as president of
Rockefeller. Why? Because Reynolds and Rockefeller University
(as well as the Rockefeller family) had a long-standing
relationship and it was an opportunity to provide input into a
multi-million dollar program in basic medical and human health
research. Seitz assembled a team of eminent health scientists
to provide insight and advice. What did the research
contribute? A Nobel Prize, for one, while others included
studies of the effect of renin on blood pressure, factors
affecting cell development, and contributors to arterial
---------------------------------------------------------------------------
sclerosis.
The very documents Oreskes and Conway cite to build the tobacco
strawman reveal that Seitz and his colleagues did nothing more
than direct an advanced research program. The underlying
citations state the Seitz-led research program was independent
of Reynolds and conducted by scientists and scientific
institutions of the highest regard. Other than asserting guilt
by association, Oreskes and Conway present no evidence that
Seitz and his many colleagues were participants in some grand
conspiracy. That conspiracy exists only in their minds. Next,
Oreskes and Conway claim Seitz and the George C. Marshall
Institute wrongly defended the creation of a ballistic missile
defense. Yes, Seitz and his colleagues, Dr. Robert Jastrow and
Dr. William Nierenberg, believed it was morally repugnant to
allow citizens to stand defenseless before the prospect of
nuclear annihilation as an intentional U.S. government policy.
Construction of a defense was technically possible and would
enhance the security of the United States, they believed.
Others didn't and the debates across the foreign policy and
scientific establishments were as charged and vociferous as any
seen before or since. The facts are: the Soviet Union fell;
President Reagan's advocacy of missile defense was part of the
equation contributing to their fall; the emerging missile
defense offers the prospect of security against rogue states
and terrorists for whom traditional deterrence likely fails;
and a world where nuclear weapons were rendered obsolete (Dr.
Jastrow's 1983 book outlines steps toward this end) remains a
goal of presidents of both political parties.
Next comes the charge that Seitz et al engaged in personal
attacks on prominent climate scientists in hopes of fostering
doubt about whether humans were causing global warming. If
Oreskes or Conway had bothered to speak with anyone who
actually knew or worked with these men, they would have quickly
learned that they were men of principle, motivated by concerns
about the erosion of scientific literacy and dangers of
manipulation of science for political ends arising from that
erosion. What caused them to look at climate change science?
Curiosity about the scientific basis of claims of apocalyptic
global warming and worry about the implications that political
leaders would draw from potentially inflated claims. Each had
decorated scientific careers and each had been leaders of
world-class scientific institutions and participants on
government-sponsored scientific panels. Jastrow was a professor
of Earth Sciences at Dartmouth and founder of the Goddard
Institute for Space Studies; and Nierenberg was the head of the
Scripps Institution of Oceanography. Each had considerable
experience working at the nexus of science and public policy
and understood the role that scientific information played in
shaping policy and political outcomes.
Oreskes and Conway claim an opposition to government regulation
motivated the Institute's founders' positions on climate
change. Speculating about what Drs. Jastrow, Seitz, and
Nierenberg felt about global warming is unnecessary as they
clearly described their concerns, ``If the changes in our
atmosphere are likely to cause consequences, we must understand
the problems and promote sensible policies to remedy them. What
would be unwise is to lapse into apocalyptic thinking or
ostrich-like denial. We believe ourselves far more
sophisticated, more enlightened, than preceding generations.
Until we can calmly and objectively approach our environmental
challenges without promoting public hysteria and exciting
short-sighted, self-interested reaction, we cannot claim that
we are.'' (Scientific Perspectives on the Greenhouse Problem,
Jameson Books, 1990: 92-93).
In fact, their work is remarkably prescient. Writing 20 years
ago, Seitz, Jastrow and Nierenberg identified the critical
variables affecting estimates of temperature and man's impact
of climate that remain the central focus of the scientific
debate today. They were: adjustments for uncertainty in the
temperature observations (the quality of the surface
temperature record has been shown to be in question); the
effect of the ocean thermal lag (the role of the oceans and the
movement of heat and carbon dioxide in the oceans remains an
area of active study); adjustments for natural variability (our
understanding of the natural patterns of Earth's climate is
still under development); and procedures for estimating 21st
century warming (a process based entirely on computer models
and forecasts which have known limitations).
For its part, the Marshall Institute is not a ``merchant of
doubt.'' Our long-held position is simple--take action on
climate change commensurate with the state of knowledge, and
have that action be flexible so it can adjust as our
understanding of man's impact on the climate changes. Do we
oppose cap-and-trade or Kyoto Protocol-like policies? Yes. They
are expensive and will yield little environmental return. Do we
propose actions to take? Yes. Did Oreskes and Conway bother to
inquire about them? No. Oreskes and Conway's work is the latest
in a long line of one-sided, fearmongering pseudo-exposes whose
purpose is to incite and intimidate. Readers are left with a
clear message--Doubt and dissent are dangerous and scientists
that question the conventional view of climate change are
corrupt charlatans in the pocket of industry. Doubt and dissent
are cornerstones of the advancement of knowledge and the
scientific process.''
It is quite clear that Kitcher doesn't have a clue about climate
science or its history. There are a few facts he should learn first
about scientists he lists:
Roger Revelle was indeed a ``prominent climate scientist''
but he was also a skeptic, as evident from his many
publications. Full disclosure: He co-authored a skeptical
article with me, which caused a lot of grief for Al Gore
and led to a libel suit, in which I prevailed. For detail,
see ``Politicizing Science: The Alchemy of Policymaking''
(Michael Gough, ed.) Hoover Institution Press, Stanford,
2003.
Ben Santer is ``prominent'' for quite a different reason.
He altered the text and doctored a graph in the 1996 IPCC
report, to promote the impression that ``the balance of
evidence'' favored AGW. When these changes were discovered,
he could not deny them but instead assumed the role of
victim from unjust persecution. For detail, see ``Climate
Policy from Rio to Kyoto: A political issue for 2000 and
beyond'' by S. Fred Singer. Hoover Essay in Public Policy
No. 102. 2000.
Kitcher evidently admires Naomi Oreskes. But does he know
that in her zeal she claimed (and perhaps still does) that
there are no publications that contradict AGW? In her
sloppy research, published in 2004 Science, she had
overlooked more than 90% of listed publications, and later
published a quiet correction to her paper that had
enshrined a phony ``scientific consensus'' which never
existed.
Kitcher also admires Jim Hansen--he of failed catastrophic
climate predictions. Starting with his temperature
forecasts of 1988, he now holds the world record for
predicting a 20-foot rise in sea level by 2100. Al Gore
loves that number, which is about 20 times the value given
by the IPCC `consensus.' Question: Does this make Hansen a
`contrarian'--and perhaps even a `denier' ?
And then we come to Steven Schneider--who has admitted
quite candidly that sometimes one has to doctor the science
(shades of Ben Santer) and invent disasters--if it will
help to persuade the public. All for the greater good, of
course.
Unfortunately, Kitcher lacks any insight into science. So there is
little point in trying to tell him that current research shows the
human contribution to climate change to be minor and well below IPCC
model calculations--while the evidence for natural influences is
becoming ever stronger. [For detail, see the NIPCC summary report
``Nature--Not Human Activity--Rules the Climate'' http://www.sepp.org/
publications/NIPCC_final.pdf]
Perhaps he does not realize that respected economists and
historians consider a warmer climate to be beneficial overall.
Certainly, all agriculturists know that higher levels of carbon dioxide
promote the growth of crops and forests.
And the IPCC agrees (and has said so for 20 years) that even severe
emission controls will have negligible effects on future levels of
atmospheric greenhouse gases.
Elsewhere, Kitcher doesn't seem to distinguish between the health
effects of smoking and secondhand smoke (SHS). Yes, smoking leads to
lung cancer; but on SHS he should read Congressional Research Service
report CRS-95-1115 and assorted academic studies to learn how EPA
fudged statistical analysis to come up, in 1993, with their scary
conclusion of 3000 annual deaths from lung cancer. [To discredit my
work on climate science, and because I agree that EPA misused
statistics, I have been falsely accused to be ``in the pay of the
tobacco lobby.'' Not only untrue, but I have never smoked, find SHS
irritating, and serve on the advisory board of an anti-smoking
organization.]
He also mixes up (purposely?) the revelations of the Climategate e-
mails with various errors in the IPCC report. Yes, Prof. Kitcher, the
conspiracy to ``hide the decline [of global temperature]'' by using
``[Michael] Mann's trick'' is a far more serious matter than getting a
wrong date for the melting of Himalayan glaciers. And so are the other
conspiracies that the leaked e-mails have uncovered: Keeping dissenting
scientists from publishing in refereed journals; intimidating editors;
perverting the peer-review process, etc. Why this effort to conflate
obvious and inconsequential IPCC errors with conspiracies aiming to
affect major public policies? So, Kitcher should disqualify himself for
his lack of science, his extreme bias (as shown by his choice of books
and his comments), and his inflammatory language. It reflects poorly on
the editors of Science magazine that they would permit this kind of
article to be published and then refer to it as a ``debate.''
But perhaps one should take the long-range view. The AGW alarmists
are losing the scientific debate--and they are becoming desperate. It's
not just that the current domestic economic problems make some future
climate change seem unimportant; it's the changes in climate science
itself: the rapidly disappearing evidence for any significant AGW.
These people are destructive to the normal process of scientific
debate, replacing argument by reason and fact with the politics of
personal attack and libel. In so doing, they are eroding the trust the
public has invested in science and scientists, who are coming to view
scientists as just another special-interest group. You can see it in
the polls. Works like Oreskes/Conway and their ideological supporters
are accelerating this process. It is time to return to a focus on the
science (which the AGW alarmists seem to be incapable of doing).
*****
Atmospheric physicist S. Fred Singer is Professor Emeritus of
Environmental Sciences at the University of Virginia and founding
director of the U.S. Weather Satellite Service (now NESDIS-NOAA).
______
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Working Paper: Disaster Debris Monitoring and Bastrop County,
TX Federal Emergency Management Agency (FEMA) DR-4029
Tetra Tech, Inc. (formerly Science Applications International
Corporation, Inc.) was retained by Bastrop County, Texas (the County)
to monitor disaster debris removal operations following the Texas
Wildfires (FEMA DR-4029) that impacted the County. Tetra Tech
monitoring operations began October 3, 2011. Prior to the beginning of
monitoring operations, the County was aware of the presence of the
Houston Toad in the designated work areas. However, the FEMA submitted
their findings to the U.S. Fish and Wildlife Service that debris
removal operations were not likely to adversely affect the federally
listed species. As a result, in a letter dated September 23, 2011, the
U.S. Fish and Wildlife Service agreed that debris removal operations
would not impact the federally listed species. The County commenced
with hazardous debris and tree removal operations with TFR, Enterprises
as the County's debris collection hauler and Tetra Tech as the
monitoring firm.
In addition to a right-of-way (ROW) debris and hazard removal program,
a private property debris removal (PPDR) program was also authorized by
FEMA. The PPDR program addressed hazardous trees and debris that were a
result of the fires but beyond the capacity of residents to address
themselves. Debris removal and monitoring operations continued for
approximately four months until the operations were significantly
impacted by a letter from FEMA dated January 27, 2012. FEMA and the
U.S. Fish and Wildlife Service determined that new operational
requirements would need to be implemented for field operations due to
the Houston Toad. Specifically, additional monitors designated as
``Houston Toad Monitors'' would be required for all debris removal
operations. See Attachment A for the FEMA Houston Toad Monitoring Work
Plan.
The implementation of the Houston Toad Monitoring Work Plan
significantly impacted debris removal operations, decreased debris
removal contractor productivity, and ultimately increased the length of
time needed to complete the project. Examples of Houston Toad
Monitoring Work Plan requirements and the impact on operations
efficiency or schedule are as follows:
Availability of Houston Toad Monitors: Houston Toad Monitors were
required to be on site and clear areas prior to debris or hazardous
tree removal work. However, FEMA could only fund a total of four
Houston Toad Monitors to the County on any given day. As a result,
operations and contractor crews were limited to the number of available
Houston Toad Monitors, which had a maximum capacity of four per day for
the County.
Working Hours: The Houston Toad Monitoring Work Plan placed
requirements on same-day debris collection or re-inspection from a
Houston Toad Monitor prior to removal if completed the next day. This
requirement limited the contractors' working hours each day due to the
time needed for debris to be collected from the site and moved to the
contained debris management site.
Means and Methods: The Houston Toad Monitoring Work Plan allowed the
Houston Toad Monitors to dictate means and methods for PPDR. For
example, the Houston Toad Monitors could dictate the routes for the
contractor to move equipment on private property so as to minimize
ground disturbance. This increased the time to complete work at each
property. Additionally, the Houston Toad Monitors could often dictate
trees be removed using ``climbers'' to remove portions of a tree at a
time instead of being felled from the ground.
As a result of the implementation of the Houston Toad Monitoring Work
Plan, debris contractor efficiency was reduced by at least 50 percent.
Specifically, the number of tree removals completed each day following
January 27, 2012 was reduced by approximately 20 percent. The average
number of tree removals completed per day for the PPDR program
decreased from 191 trees to 151 trees. Additionally, as Figure 1 shows,
total debris collected per day for the right-of-way program was
drastically impacted due to the Houston Toad Monitor requirements and
availability. Figure 1 shows a clear decrease in productivity following
the implementation of the Houston Toad Monitoring Work Plan.
Figure 1--Total Debris Removal by Day for Right-of-Way (ROW) Collection
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
In closing, Tetra Tech understands the need to implement guidelines
and requirements to protect wildlife, especially those that are
federally listed species. During the course of the project, the Tetra
Tech project management team adhered to the requirements specified in
the Houston Toad Monitoring Work Plan. However, it is clear that the
Houston Toad Monitoring Work Plan had a direct correlation to the
decreased contractor efficiency and the increased time needed to
complete the project.
Attachment A: FEMA Houston Toad Monitoring Work Plan--[This document
can be found on page 26 as part of the attachments to Clara Beckett's
prepared statement].
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
-- Bastrop Wildlife Interagency Meeting--Natural Resources,
Incident Command--Bastrop Convention Center, September 13,
2011, Minutes of Meeting.
-- California Coastal Commission--Staff Report to the Drake's
Bay Oyster Company recommending ``Restoration of Drakes Estero
through removal of marine debris and equipment associated with
the former Drake's Bay Oyster Company aquaculture operation.''
-- Editorial titled ``Truth on the half shell in oyster
debate.'' Press Democrat, May 13, 2013.
-- Editorial titled ``A Deal is a Deal,'' by Lynn Scarlett, The
Huffington Post, January 17, 2013.
-- Fifth Circuit Court of Appeals Verdict in the case of
``Arkansas Project v. Shaw''.
-- Forstner, Michael, Alexander Stone Chair in Genetics, Texas
State University, Statement to Chairman and Members of the
Committee.
-- Investigative Report by the Office of the Inspector General,
Department of the Interior, on the Environmental Impact
Statement issued by the National Park Service on the Drake's
Bay Oyster Company.
-- Kennedy, Pete, President, Farm-to-Consumer Legal Defense
Fund', Statement to Chairman and Members of the
Committee.
-- Porrata, Carlos, November 1, 2012 Letter (both in English
and Spanish) addressed to Director Jon Jarvis of the National
Park Service, titled ``Latino Jobs at Drakes Bay Oyster
Company, Point Reyes National Seashore.''
-- Robinson, George, Acting Regional Administrator for FEMA,
December 5, 2012 Letter to Chief Kidd, Assistant Director,
Texas Dept. of Public Safety.
-- Salazar, Ken, then-Interior Secretary, November 29, 2012
Letter to the National Park Service titled ``Point Reyes
National Seashore--Drake's Bay Oyster Company.''
-- Special Use Permit issued by the National Park Service to
the Drakes Bay Oyster Company.
-- Texas Department of Public Safety, April 18, 2013 Letter to
Mr. Gregory Eaton, Director, Recovery Division, FEMA-Region VI.
[all]