September 21, 2011

Wait, I thought the Interior Department supports using the best available science?!?!

By Wait, I thought the Interior Department supports using the best available science?!?!

Author: Brandon Middleton

Earlier this week, Interior Secretary Ken Salazar gave a fairly routine political speech at the Commonwealth Club in San Francisco.  The subject of Salazar's speech was California's water, and the Secretary paid particular attention to the Bay Delta Conservation Plan and the need to use the best available science:

[W]e have to invest in and rely upon the best science available to guide us. Moving millions of acre-feet of water through, under, or around the Bay Delta will be complicated. If we are to succeed, we need the best science from inside and outside of government. And we should not hesitate to have independent scientists review and validate what is planned. We have to get this right.

According to the Contra Costa Times, Salazar pledged later that day "to be guided by science. 'We're not taking shortcuts on the science,' he said."

Yet at the very moment the Secretary made these remarks, the reverberations from what may be the most significant water litigation decision this year were being felt throughout the Golden State.  In contrast to Secretary Salazar's emphasis on the need for the the best available science in Delta conservation efforts, a federal court determined on Friday, Sept. 16, that the Secretary's own staff had used the exact opposite in attempting to justify misguided water restrictions for the delta smelt.

Federal judge Oliver W. Wanger found that the Secretary's own United States Fish and Wildlife Service and Bureau of Reclamation had engaged in "agency bad faith" by providing conflicting testimony in "an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it's not science."

In the delta smelt case, the Service's claim that the Delta X2 salinity measure must be kept at 74 km east of the Golden Gate Bridge was something much worse than flawed science:

There can be no acceptance by a Court of the United States of the conduct that has been engaged in in this case by these [government] witnesses. . . .

There is speculation. There is, primarily, mostly contradicted opinions that are presented that the Court not only 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.

And the Court draws the inference of knowledge and draws the inference of intent. Because those are intentional misstatements, they can't be anything else. And they're made for only one purpose, they're made for the purpose of attempting to influence the Court to decide in a way that is misleading, confusing.

And the detail and the factual complexity of this case obviously requires close scrutiny and great effort. And if anybody had been just, quite frankly, a little bit inattentive or a little bit less diligent than digging into and trying to get to the bottom of every one of these assertions, it would be very easy to simply accept these opinions with these record citations.

And 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 the data, then that is a further misleading of the Court. That is a further, if you will, distortion of the truth.

Thus, according to the court, instead of Salazar's staff providing court testimony based on the best available science, the testimony given was in fact "that of a zealot."

Meanwhile, President Obama's Commerce Deparment hasn't fared much better in California water affairs.  Just yesterday, Judge Wanger invalidated the National Marine Fisheries Service's 2009 salmonid biological opinion, based in part on the agency's failure to use the best available science.

In this case, federal scientists inexplicably did not scale to population the fish data used to justify harmful water cutbacks.  Not surprisingly, this and other errors on the part of NMFS left Judge Wanger unimpressed: "As this agency practices, what is 'science' for the 'goose' is clearly not for the 'gander.'"

One may wonder where the federal government's unlawful actions leave us today.  I think it is safe to say that Secretary Salazar's fondness for the best available science can be seen as nothing more than an empty talking point, at least when it comes to California water.  His claim that the Interior Department doesn't take "shortcuts on the science" is belied by the actions of his staff in the delta smelt litigation.

Granted, the decisions referenced above came out only within the past week, and the Obama administration is certainly entitled to appeal the rulings–as it has done in the delta smelt litigation and may do in the salmonid litigation as well.

But water users have repeatedly explained the flaws in the feds' science since the beginning days of the President's administration, and it's not as if Judge Wanger hadn't called out the federal government prior to this past week's reckoning.  And it's not just the water users that have expressed their concerns to the Obama administration, as many would like to think:

It is of crucial significance to the Court that the [California] Department of Water Resources is sitting in this Court.

I've already found this in many of these cases at earlier times. Their scientists aren't better, they're not
worse. They're as good as the federal scientists. They are not less concerned about the species. They are not less concerned about the public interest.

And they are here opposing in every way this fall X2 action for very good reasons that are explained and that are justified. Just as that paucity of justification and absence of explanation that makes the action and BiOp unlawful exists on the federal side of this equation. And that weighs heavily because the DWR is here to protect the people of the State of California as well as the national interests in the species and in all the issues that are before the Court.

If Secretary Salazar is going to preach the gospel of the best available science, he would do well to see to his own house.  As Judge Wanger noted in his August 31 delta smelt X2 ruling:

The agencies still "don't get it." They continue to believe their "right to be mistaken" excuses precise and competent scientific analysis for actions they know will wreak havoc on California's water supply.

In the end, and especially for those in the San Joaquin Valley and Southern California who are the victims of the feds' "sloppy science," Secretary Salazar's visit to San Francisco was an opportunity for him to acknowledge that he is at least cognizant of the numerous and legitimate concerns over the feds' so-called science and resulting environmental restrictions.  But he failed to do so then and seems unlikely to do so at any point in the near future.  This lends credence to Judge Wanger's admonition that the federal government's duty to protect species and people is a mission of which the federal government has lost sight.

Update: Felicity Barringer of The New York Times provides this nice summary of the recent delta smelt developments.

[Disclosure: PLF attorneys represent three almond and pistachio growers who are plaintiffs in the delta smelt litigation.  PLF also participated as amicus curiae in the salmonid litigation.]

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