News from the Front #94:

Federal Courts Ensure Junk Science Governs Salmon Harvest Decisions

For every one that doeth evil hateth the light, and cometh not to the light, lest his works should be reproved.  John 3:20.

Sportfishing interests, more precisely the Salmon Spawning & Recovery Alliance, Wild Fish Conservancy, the Native Fish Society, and Clark-Skamania Flyfishers, recently lost a big one when Judge Lasnik in Seattle rejected their challenge to National Marine Fisheries Service decisions sanctioning continuing overfishing on threatened Puget Sound chinook salmon.  The Alliance sued under two federal statutes that require NMFS to use the best available science in decision making.  It has been years since the Service did that, and it is increasingly clear that the Federal courts are the most powerful force making sure that NMFS can deem any particular science it wants as the best science—at least when it comes to harvest science.

Back in 2001, NMFS invited a blue-ribbon panel of outside academics to review its harvest policies.  Called the Recovery Science Review Panel, they issued a blistering report (.pdf, 2.3 Mb) concluding that “NMFS should develop a rational [harvest] policy that does not demean scientific common sense” (p. 13).  Commercial harvest interests (more precisely, their state and tribal mouthpieces), demanded that NMFS repudiate the Panel report.  NMFS bureaucrats scurried about like bugs after their rock was overturned, ultimately commissioning a thirty-eight page review of the Panel’s wide-ranging critiques from the elite science wing of NMFS at its Northwest Fishery Science Center facility (.pdf, 1.5 Mb (redacted version)).

NMFS bureaucrat Frank Lockhart testified that the Science Center’s review “affected NMFS’ adoption of recovery plans and biological opinions pertaining to the listed salmonids” throughout the Northwest.  Presumably these included the very decisions Judge Lasnik approved.  But NMFS made sure Judge Lasnik never saw the thirty-eight page Science Center report, or the Panel’s “common sense” report that triggered Science Center’s involvement. 

Federal judges taught NMFS long ago that it need fear no discovery in litigation with mere citizens.  When citizens complain about government decisions, federal judges declare that citizens don’t get to put on evidence.  Only the federal agencies do.  They go into their files, and bring out a set of documents and present them to the Court as the “administrative record” against which the decisions must be judged.  Congress required the Courts to consider the “whole record” in the Administrative Procedure Act, including all documents considered by the agency, but most of the time, no one can ever tell if the agencies have presented the “whole record” or not.

You might think that citizens could make requests under the Freedom of Information Act to figure out whether the “whole record” is there or not.  But the federal courts have shut that avenue down too.  The Freedom of Information Act has “Exemption 5,” which says agencies don’t have to release documents if it could withhold them in a lawsuit with citizens.  And the federal judges say this language means Congress empowered the federal courts to invent special “privileges” for the government.

And the broadest privilege is the privilege to hide federal decision making processes from the citizens.  The federal courts claim that if citizens could see what federal employees were really thinking and saying in their e-mails and documents inside the agency, they might be “chilled” by the public reaction.  This, the federal courts claim, will lead to lower quality decisions.  The unspoken premise is that whatever the federal government is trying to accomplish is something that ordinary citizens can’t be expected to understand, that government can’t be troubled to explain to them, and/or is sufficiently rotten that we dare not expose it to public scrutiny. 

So when I made a Freedom of Information Act request to get the Science Center report, to make sure it was part of the “whole record” in future harvest litigation, NMFS said no.  And I challenged that decision in Federal court in Seattle, where Judge Zilly had recently declared that that “Exemption 5” didn’t apply to scientific material used in Endangered Species Act decisionmaking at all.  Judge Zilly recognized that you couldn’t enforce the statutory requirement to use the “best science” if the agencies are permitted to hide their science behind a “predecisional” privilege.  But my case was assigned to Judge Pechman.

NMFS responded by invoking its judicially‑manufactured privilege, and filed Mr. Lockhart’s testimony admitting that the Science Center report was important and had influenced the decisions before Judge Lasnik.  So, having forced NMFS to file the Science Center report and related documents in court for in camera review, I wrote to Judge Lasnik and Judge Pechman to express my “serious concern” that NMFS was not putting the “whole record” before Judge Lasnik, without which judicial review could not determine whether the federal agencies were using the best science. 

Some Seattle federal district judges have cared quite a bit about what the NMFS Science Center scientists think.  In recent Trout Unlimited v. Lohn case, Judge Coughenour in Seattle set aside NMFS’ hatchery policy, placing heavy reliance on their assessment.  Not Judge Lasnik.  Judge Lasnik responded by saying that the Panel report merely “purports to criticize NMFS’ harvest decisions”, accused me of acting on the basis of mere “suspicion”, sent his clerk off to the library to find a case to let him accuse me of “highly inappropriate” conduct for daring to bring the matter to his attention, and concluded he would do nothing “and the parties in this case need not file any response” (.pdf, 190 Kb).  (The case the clerk found is about a lawyer for a party in a case, who sends letters to the judge “ex parte” without copying the other side.  I am not in Judge Lasnik’s case, and copied everyone.)  And then the lawyer who is supposed be representing the sportsfishing interests piled on, echoed the false accusations of improper ex parte conduct, and indicated that his clients do not “join in [the] allegations, to the extent they understand them” (.pdf, 28 Kb).

As for Judge Pechman, she echoed the allegation of inappropriate conduct in a footnote and wasn’t about to order NMFS to release any documents.  According to her, the Science Center response to the Panel’s criticism (“Document 14(b)”) “does not contain any purely factual material that requires disclosure” and “when an author discusses factual material in the course of offering recommendations of policy, the documents are properly withheld under the deliberative process privilege”.  (.pdf, 35 Kb)  The unredacted headings of the Science Center report confirm that the scientists thought they were evaluating the “scientific merits” of scientific issues, but according to the federal judges, everything is predecisional and everything can be declared secret from the citizens.

So we will never know whether or not NMFS’ own scientists think that the agency’s harvest policies “demean scientific common sense” or not.  And sportsfishing interests have missed yet another opportunity to put some more fish in the river, by refusing even to attempt to require NMFS to listen to its own scientists.  And citizens who may wonder why commercial interests can kill hundreds of thousands of salmon ostensibly protected under the Endangered Species Act will never know that the federal judges, in their zeal to protect federal agencies from accountability, are at the root of the problem.

  © James Buchal, June 16, 2008

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