Scores of scientists work for the Interior Department on issues involving birds and bees, foxes and foxgloves, and all manner of other species and their habitats. But in the eyes of the general public they tend to be virtually anonymous, at best names in italics at the end of a Federal Register notice.
Center for Biological DiversityThe endangered delta smelt.
Nonetheless, a spotlight has been trained recently on a few department employees: some National Park Service scientists at Point Reyes National Seashore on California’s northern coast, and an Arctic wildlife biologist working for the Anchorage office of the Bureau of Ocean Energy Management. And this week, two Interior fish biologists were excoriated as deceitful zealots in an unusual diatribe by a federal judge, Oliver W. Wanger.
The two scientists’ testimony has been a crucial element in a lawsuit over who gets how much of California’s fresh water.
The scientists, Frederick V. Feyrer of the Bureau of Reclamation and Jennifer M. Norris of the Fish and Wildlife Service, have testified about what habitat must be protected to save the endangered delta smelt, a small minnow-like fish. The smelt’s populations have been decimated in the decades since the delta where the San Joaquin and Sacramento Rivers meet was re-engineered to send water to farms and cities in southern California.
The scientists testified that by flushing more fresh water from the Sacramento River to the briny eastern marshes that open out to San Francisco Bay, the smelt, which prefers lower salinity, will have access to more habitat, which it needs to survive and reproduce.
The area of ideal salinity for the smelt shifts back and forth, eastward and westward, depending on the time of year, the amount of rain and the decisions of federal and state water managers. (A fuller explanation with diagrams can be found at the Bay Delta Blog.)
This zone of ideal salinity for young smelt to feed is known as the X2; the Interior Department had decided that in wet years like this one, it should be no farther than 46 miles east of the Golden Gate Bridge. The decision was challenged in the lawsuit by the state and agricultural water interests, which prefer that less go out to the bay.
In a decision two weeks ago, Judge Wanger sent an Interior Department plan for water distribution that is intended to help protect the endangered delta smelt back for reworking.
And on Monday, he detailed some of his thinking in open court in Fresno. His dissection of the scientists’ testimony is worth quoting at length.
“The court finds that Dr. Norris’s testimony, as it has been presented in this courtroom and now in her subsequent declarations, she may be a very reasonable person and she may be a good scientist, she may be honest, but she has not been honest with this court. I find her incredible as a witness. I find her testimony to be that of a zealot. I’m not overstating the case, I’m not being histrionic, I’m not being dramatic. I’ve never seen anything like it. And I’ve seen a few witnesses testify.”
A Department of Interior spokesman said Wednesday that neither Dr. Norris nor Dr. Feyrer would comment on the judge’s remarks because of the ongoing litigation.
“Our priority is simple and clear: to help the population recover in wet years like this –- activities supported by science and the law -– as part of our overall efforts to improve the long-term health of the delta for water users, fish and wildlife, and communities across California,” the spokesman, Adam Fetcher, said.
“We will carefully consider Judge Wanger’s finding, and will review our legal options with the Department of Justice,” he added.
Thursday, 11:08 a.m. | Updated Mr. Fetcher, the Interior Department spokesman, issued a follow-up statement Thursday morning defending the work of Drs. Feyrer and Norris. He said in an e-mail: ““The Department of the Interior has been diligent responding to the varying matters before Judge Wanger’s court, including in the formation of the delta smelt biological opinion, first in 2005, which was then rewritten at the judge’s request in 2008. We stand behind the consistent and thorough findings by our scientists on these matters and their dedicated use of the best available science.”
Judge Wanger had plenty more to say on Monday.
“The suggestion by Dr. Norris that the failure to implement X2 at 74 kilometers, that that’s going to end the delta smelt existence on the face of our planet is false. It is outrageous. It is contradicted by her own testimony, it is contradicted by Mr. Feyrer’s testimony, it’s contradicted by the most recent adaptive management plan review, it’s contradicted by the prior studies, it is — candidly, I’ve never seen anything like it.”
As for Dr. Feyrer, the judge said:
“And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the court can draw is that it is an attempt to mislead and to deceive the court into accepting not only what is not the best science, it’s not science. There is speculation. There is primarily, mostly contradicted opinions that are presented that the court finds no basis for, but they can’t be anything but false because a witness can’t testify under oath on a witness stand and then, within approximately a month, make statements that are so contradictory that they’re absolutely irreconcilable with what has been stated earlier.”
“When the record says the opposite of what you cite the record for, or when the record doesn’t say what you cite the record for, there’s simply an absence of data, then that is a further misleading of the court. That is a further, if you will, distortion of the truth.”
And a few minutes later, the judge, whose words in open court were transcribed, said of the scientific analysis that Dr. Feyrer presented to the court:
“Does the court reasonably rely on this kind of analysis? What the court uses as the term to describe it is it is opportunistic. It is an answer searching for a question. It is an ends/means equation where the end justified the means no matter how you get there. Whether you use science, whether you use statistics, whether you use anything that is objective or not.”
Noting that the scientists were agents of the federal government, he then reflected:
“The United States, as a sovereign, has a duty not only in dealing with the court but in dealing with the public to always speak the truth, whether it’s good or bad. It’s never about winning and losing. It’s always about doing justice. And in the final analysis, protecting endangered species is crucially important. It’s a legislative priority. And even the plaintiffs don’t dispute that. But when it overwhelms us to the point that we lose objectivity, we lose honesty, we’re all in a lot of trouble. Serious, serious trouble.”"
(The Pacific Legal Foundation’s Liberty Blog covered both the judge’s decision to ask the Interior Department to go back to the drawing boards to justify its plan of action for the delta salinity issue and his criticism of the scientists.)
It will be interesting to see if the same scientists are involved in the next round of analysis, and what they say; they won’t be saying it to Judge Wanger, who is in his final days on the bench (which may have loosened his tongue a bit). He retires at the end of this month and will join a private practice.
On another front, scientists at the Point Reyes National Seashore who have found that a controversial oyster farm is disturbing harbor seals have also been accused of overstating its case over the last two years, even by an Interior Department lawyer and by other scientists.
In both the case of the smelt and the case of the harbor seals, the scientists’ findings have been the underpinning of policy decisions. A preliminary decision on the oyster farm is imminent.
The scrutiny of Charles Monnett, an Arctic scientist who reported on the sighting of drowned polar bears and was placed on administrative leave this summer, has different implications. He is now under investigation by the Interior inspector general; of all of the scientists mentioned here, he is the only one against whom some agency action is known to have been taken.
Many have noted that Dr. Monnett’s observations could be marshaled against decisions by his employer, the Department of Interior, to grant permission for oil and gas drilling in the Arctic.