When examining new delta smelt panel report, proceed with caution


Regarding the independent panel report on the delta smelt X2 testimony controversy, reviews of the report suggest that the two federal scientists who provided the testimony at issue have been vindicated, and that Judge Wanger’s Fall 2011 criticism of the scientists can now be said to be (as the Department of Interior told the Contra Costa Times) “unfounded.”

I think these initial assessments of the panel report are inaccurate, and I urge those interested to compare the surprisingly brief panel report to the detailed findings made by Judge Wanger in September, as well as to Judge Wanger’s summary of the events that he gave during a presentation to the Association of California Water Agencies 2011 Fall Conference (beginning at about 37:00 of his remarks).

For the scientists involved, instead of vindication, the report appears to offer a mixed bag.  While the report states that “Mr. Feyrer and Dr. Norris, for the most part, made good faith efforts to engage in a cooperative scientific endeavor,” it adds that “all scientists have (through their commitment to the principles of integrity, transparency, etc.) an additional and higher responsibility, to explain their reasoning and their use of evidence,” and that “[i]n this regard, we feel that neither Mr. Feyrer nor Dr. Norris followed the best possible scientific practices in documenting and explaining his or her position, showing how the conclusions were reached.” (emphasis in original report)

Likewise, rather than suggest that Judge Wanger was off-base in this remarks, the panel report states instead that “the explanations provided, as to how these two scientists reached their conclusions, could have been clearer and more forth-coming,” and that “this failure to provide clear and convincing explanation, more than any other issue, may have led Judge Wanger to reach his conclusions alleging lack of candor and integrity.”  The report also makes a general observation that scientific and statistical uncertainty “from a legal perspective . . . may appear as an attempt to confuse or mislead the court.  However explicit treatment of uncertainties and unknowns is not unprofessional behavior — it is good science.”

This observation is noteworthy because it is symbolic of the panel’s charitable view of what actually happened in this case–wouldn’t it be nice if we could chalk up the X2 saga to an irreconcilable difference between scientific and legal processes?

Take, for example, the panel’s brief analysis of Dr. Norris and whether her opinions (in the words of the panel) “change[d] over time”:

The declarations by Dr. Jennifer Norris appear to rely strongly, if not exclusively, on the 2008 BiOp, as evidenced by her frequent citations of the BiOp. The implication is that Dr. Norris believes that the 2008 BiOp relies on the best available science for implementing the RPA. Although Dr. Norris acknowledges that key agency biologists and academic scientists did participate in a Habitat Study Group that was charged with developing a scientific plan of study to support the adaptive management of the Fall Action, we have seen no explanation of how Dr. Norris has evaluated the information that has become available since the 2008 BiOp. Dr. Norris was certainly aware of the information provided by plaintiffs as evidenced by her statement “Plaintiffs did not propose any specific management alternative to the Fall Action, but rather, proposed studies and data analysis activities that, while potentially informative, would not provide any tangible benefits to the delta smelt during the Fall” (Norris declaration 07/01/11 p. 4:22-25) but, we do not see evidence that she relied upon this information. In her 09/07/11 declaration, Norris continues to cite the 2008 BiOp and information sources available prior to that date. However, she does cite Feyrer et al. (2011), but without explanation as to why this is the only additional information source she relies upon.

In summary, we find that Dr. Norris’s opinions, and consequent testimony, were consistent over time. This is compatible with normal scientific practice, if she is unconvinced of the need to change her opinions in the light of any new information.

I have emphasized that last part because it highlights the central problem behind Dr. Norris’s testimony–it was too consistent. She dogmatically maintained that the 2008 biological opinion’s 74 km standard was the only way to go, even though the historical data she used to justify her position had already been found to be unpersuasive, and despite the federal government’s later recognition that the “use of an 81 km target for falls after above-normal years . . . represents a reasonable intermediate action to restore late post-reservoir period salinity conditions in the fall.”

In the face of more recent data offered by her colleagues, Dr. Norris nonetheless submitted a bombshell to the court in September 2011, declaring that implementation of the original 74 km measure “may represent the last opportunity to prevent extinction” of the delta smelt.

This found no support in the record, and thus Judge Wanger concluded that “Dr. Norris is that unique witness who no matter how you change the facts hypothetically and ask her a question, she never varies from her answer because she is a true believer.  And she never — there is nothing that will shake her belief.  There is nothing in that will move her to answer except that [which] justifies the result and the end that is sought to be achieved.”

But by asking whether Dr. Norris’s opinions “changed over time,” the panel of course made the wrong inquiry, and its finding that “[s]he does not offer an obvious explanation as to why she continues to rely specifically on information supporting the 2008 BiOp and not consider more recent information in forming her conclusions” barely scratches the surface of the delta smelt proceedings.

In addition, for a paper authored by three well-respected scientists, the panel report’s review of Mr. Feyrer’s testimony reads more like a lawyerly defense of the biologist than an objective analysis.

Recall that the controversy with Mr. Feyrer began at the July 2011 delta smelt X2 hearing, when he was seemingly okay with Fall X2 being located at 79 km east of the Golden Gate Bridge, having testified that when X2 is located downstream of the 80 km mark (the confluence of the Sacramento River and San Joaquin River), “X2 and low salinity zones are in those vast large shallow base, those shoals of Suisun Bay, Grizzly Bay, Honker Bay, and so there’s a lot of area there.  That’s why the habitat index is bigger.”

But when Judge Wanger decided in August to enjoin the Fall X2 action and ordered that “[n]o Fall X2 action setting the X2 target west of 79 km shall be implemented,” Mr. Feyrer did an about-face and argued in a September declaration that “[m]y testimony in this matter is not consistent with a finding that positioning X2 at 79 or 80 km would provide sufficient habitat quality for delta smelt during the fall relative to . . . positioning X2 at 74 km.”

The panel attempts to explain this discrepancy through its determination that Mr. Feyrer’s comments are contradictory only “on the surface,” and only “if a literal interpretation of Feyrer’s July comment related to ‘downstream of the confluence’ is interpreted as a physical line drawn on a map immediately downstream of the confluence of these rivers.”

The panel then offers a caveat:

But Feyrer is a biologist and the committee feels that Feyrer is interpreting the position of X2 not as a line on a map as Judge Wanger appears to do, but instead, as Feyrer states in his July declaration (page 7, about line 24) “By definition, X2 describes the position of the low salinity zone in the estuary” and then about line 25 says “It is the low salinity zone, not specifically X2 that is delta smelt habitat”. . . .

The committee feels that Mr. Feyrer does not fully explain why he adopts a more precautionary approach . . . in describing whether or not X2 at 79 or 80 km will or will not make Suisun Bay, Grizzly Bay, Honker Bay and other areas of potential suitable habitat available during his September declarations. In the July declarations and testimony Feyrer uses more general language to describe expansion of suitable habitat when X2 is downstream of the confluence of the Sacramento and San Joaquin rivers. The committee feels that a large amount of confusion on this point would have been avoided if Feyrer had very explicitly stated at what river kilometer X2 would have to be located to make these habitats available or if this knowledge isn’t available (because of uncertainty in how the lower salinity areas are distributed in these bays due to wind, tide, and other uncontrollable factors), then this uncertainty should have been clearly articulated. In reading the statements of Judge Wanger. and the testimony and written declarations of Feyrer it does appear that at times there are different interpretations of the definition of X2, either as a specific line on the map (Judge Wanger) or a more general broad area of suitable habitat (Feyrer).

There are two significant problems with the panel’s analysis here.  First, it’s absurd to suggest that “there are different interpretations of the definition of X2.”  It has always been understood to be a measure of salinity (two parts per thousand), not one of location, and I fail to understand how the panel could suggest that Judge Wanger defined X2 “as a specific line on the map.”

Second, the panel implies the Mr. Feyrer did not clearly opine on possible locations of X2 and how those locations would affect the delta smelt.  Yet that is precisely what he did.  Judge Wanger pointed this out in September:

Mr. Feyrer testified — when the Court asked: “What if you were to use a less water intensive application of this X2 model? For instance, at 79 kilometers, where you would get areas that we discussed yesterday within the scope of the ultimate objective, but not require as much water to do it, would the same purposes be accomplished?

Mr. Feyrer said: “With the above normal year standard 81, 81 is pretty much near the bottom of the ascending limb of that curve. And that’s the minimum point where you get out of that lower tier of habitat conditions.”

He was then asked . . . when Mr. Sims asked the question, “So when the — what the data demonstrates then is that when X2 is below the confluence, that opens up Suisun and Grizzly, right?”

Mr. Feyrer said, “Yes. As depicted in those habitat maps.”

And he was asked “If X2 was maintained at 79 kilometers, would Grizzly and Suisun Bays still be available habitat?”

He answer[s] under oath: “Yes.”

Next question: “If X2 is above 80 kilometers, smelt still use Suisun Bay; don’t they?”

“Answer: Yes.”

The panel says confusion “would have been avoided if Feyrer had very explicitly stated at what river kilometer X2 would have to be located to make” habitat available.  What, then, is the above testimony if not explicit statements on that exact subject?

This goes to show that the panel report and stories thereon should not be taken at face value.  While it is doubtful that anyone is completely satisfied with the panel’s findings, perhaps the report’s greatest flaw is its brevity–only ten substantive pages dedicated to an issue of such importance.  Given the stakes for all involved, a more in-depth analysis would have been preferable.

[Thanks to the Stockton Record‘s Alex Breitler for making the panel report available.]